Docket: T-697-15
Citation:
2015 FC 1182
Toronto, Ontario, October 20, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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SPRUCE HOLLOW
HEAVY HAUL LTD.
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Applicant
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and
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SHANNON
KNEZACKY MADILL
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Respondent
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JUDGMENT AND REASONS
[1]
This is the second application for judicial
review of a proceeding under the Canada Labour Code concerning the
dismissal of Shannon Knezacky by Spruce Hollow Heavy Haul Ltd.
[2]
In 2013, an adjudicator determined that Spruce
Hollow had failed to establish that it had just cause to dismiss Ms. Knezacky.
That decision was upheld by this Court on judicial review.
[3]
The adjudicator subsequently determined that
having conceded liability, Spruce Hollow had waived any right that it may have
had to argue that the unjust dismissal provisions of the Code should not
apply to Ms. Knezacky on the basis that she was a manager. The adjudicator
further determined, in the alternative, that Spruce Hollow had not established
that Ms. Knezacky had in fact been a manager.
[4]
The adjudicator also concluded that Ms. Knezacky
was entitled to damages for lost wages and expenses. In addition, the
adjudicator held that the reprehensible conduct of the employer and its
representative, Ron Madill, were such that Ms. Knezacky should receive awards
of both punitive and aggravated damages.
[5]
Spruce Hollow seeks judicial review of this
second decision, asserting that it was treated unfairly by the adjudicator, who
did not allow it to raise the question of whether Ms. Knezacky was a
manager at the remedies hearing. At the same time, Spruce Hollow argues that
the adjudicator’s finding that Ms. Knezacky was not a manager was
unreasonable.
[6]
Spruce Hollow further submits that the
adjudicator erred in awarding punitive and aggravated damages on the facts of
this case, or, in the alternative, that the awards were excessive.
[7]
I have concluded that the adjudicator did not
err in arriving at his decision, with the result that the application for
judicial review will be dismissed.
I.
Background
[8]
It is important to have an understanding of the
events giving rise to this litigation and of the history of the proceeding
itself in order to put the adjudicator’s decision into context, particularly as
it relates to his award of punitive and aggravated damages.
[9]
Spruce Hollow is a small company which
specializes in hauling oversized equipment across Western Canada and the
Western United States.
[10]
Mr. Madill and Ms. Knezacky were
husband and wife. Together with James and Jen Weber, they were shareholders and
Directors of Spruce Hollow. Mr. Madill and Ms. Knezacky were also
creditors of the company, having loaned Spruce Hollow approximately $150,000.
[11]
These four individuals were also company
employees. Mr. Weber was Spruce Hollow’s President, and worked as a truck
driver. Mr. Madill was the General Manager of the company, and Ms. Weber
was also employed by Spruce Hollow. Ms. Knezacky began working for Spruce
Hollow in 2005, and described herself in her unjust dismissal complaint as the
company’s “Administrative Officer Manager”, and
in her affidavit as “the lead dispatcher, in charge of
quoting freight, arranging/dispatching trucks, customs, customer relations,
etc.” The company operated out of the basement of Mr. Madill and Ms. Knezacky’s
matrimonial home in Abbotsford, British Columbia.
II.
The Events Leading up to Ms. Knezacky’s
Dismissal
[12]
Ms. Knezacky alleges that her marriage to Mr. Madill
was an abusive one, something that Mr. Madill denies. The couple separated
on August 11, 2011, when Ms. Knezacky left the family home following a
confrontation with Mr. Madill that Ms. Knezacky says became violent.
The parties subsequently became involved in acrimonious divorce proceedings.
The conflict between Ms. Knezacky and Mr. Madill gave rise to many of
the events at issue in this case, and the issues that confronted the
adjudicator were often intertwined with the matrimonial proceedings in which
the couple were involved.
[13]
Ms. Knezacky testified that she was afraid
of Mr. Madill and was concerned about the fact that she would have to work
with him after the couple separated. In the period between her separation from Mr. Madill
and the termination of her employment (a period of just under a month), Ms. Knezacky
says that she was verbally abused by Mr. Madill while she was at work.
When Ms. Knezacky complained to James Weber about Mr. Madill’s
conduct, he promised Ms. Knezacky that he would address Mr. Madill’s
conduct and assured her that her job was safe. No action was ever taken by Mr. Weber,
however, to protect Ms. Knezacky from Mr. Madill’s abuse, and it
later became apparent that Mr. Weber had allied himself with Mr. Madill.
[14]
On August 28, 2011, Mr. Madill changed the
locks on the family home. This meant that Ms. Knezacky also could no
longer access her workplace, and Mr. Madill advised her that she was no
longer welcome in either the home or the office. Ms. Knezacky spoke again
to Mr. Weber about the situation and he told her not to worry, and that he
would sort things out when he got back from his latest job.
[15]
During the night of August 30, 2011, the vehicle
that Ms. Knezacky had been driving was removed from the driveway of the
house where she was staying and was later located at her former matrimonial
home.
[16]
On September 7, 2011, Ms. Knezacky received
a letter dated August 31, 2011 signed by Mr. Weber, advising her that her
employment with Spruce Hollow had been terminated. No reasons were given for
her termination. She received a second letter from Mr. Weber that same day
(also dated August 31, 2011) advising her that she had failed to attend a
crucial business meeting and that, as a result, she was being removed as a
director of the company and all of her signing authorities were being revoked.
III.
The Events After the Termination of Ms. Knezacky’s
Employment
[17]
Ms. Knezacky filed her complaint of unjust
dismissal on September 21, 2011, and the adjudicator was appointed to deal with
the complaint on March 28, 2012. However, the matter did not proceed to a hearing
on the merits until August 7, 2013.
[18]
Ms. Knezacky was initially reluctant to move the
matter forward because, although she had requested that Mr. Weber
represent Spruce Hollow in the unjust dismissal proceedings, the company
appointed Mr. Madill as its sole representative in the matter. Spruce
Hollow says that Mr. Madill was appointed as its representative because
Mr. Weber was often on the road, and that he was not comfortable speaking
publicly, and would have difficulty representing the company in a matter such
as this. Spruce Hollow further states that Jen Weber would also not have been a
suitable representative as she was an inexperienced employee and did not want
to assume that role.
[19]
In reviewing the adjudicator’s decision on
liability, Justice Mosley held that “it was improper
for [Spruce Hollow] to insist on having Mr. Madill represent its interests
given the matrimonial dispute in which he was involved with the respondent”.
Justice Mosley further observed that “Mr. Madill
could be perceived to have an oblique motive for delay and obstruction of the
Labour Code proceedings” and that “the tone of [Spruce
Hollow’s] communications with the Adjudicator and between Mr. Madill and
[Ms. Knezacky] suggest, at best, an attempt to stall the proceedings and
at the worst, intimidation”: Spruce Hollow Heavy Haul Ltd. v. Madill,
2014 FC 548 at para. 50 [“Spruce Hollow #1”].
[20]
Ms. Knezacky quickly overcame her initial
reluctance to proceed with her case, and the adjudicator attributed much of the
ensuing delay to Spruce Hollow and Mr. Madill, both of whom had resisted
attempts to move the litigation forward in an orderly and expeditious manner.
[21]
The adjudicator found in an interlocutory
decision dated October 24, 2012 that Spruce Hollow had never provided Ms.
Knezacky with any reasons for the termination of her employment. Consequently,
he ordered Spruce Hollow to provide Ms. Knezacky with reasons for her
dismissal within one week of his order. The adjudicator further directed that
the document be delivered to his office, stating that once he was satisfied
with the form and content of the letter, he would provide it to
Ms. Knezacky himself.
[22]
Spruce Hollow then brought a preliminary
challenge to the adjudicator’s jurisdiction, in which it argued that Ms.
Knezacky had not been employed by Spruce Hollow for a sufficient length of time
as to entitle her to the protection of the unjust dismissal provisions of the Canada
Labour Code. Spruce Hollow alleged that Ms. Knezacky had been an
independent contractor and not an employee of Spruce Hollow during part of the
time that she worked at the company. The adjudicator rejected this argument,
finding that Ms. Knezacky had been employed at Spruce Hollow for more than the
requisite 12 consecutive months of continuous employment prior to her
dismissal.
[23]
Spruce Hollow then brought another motion
seeking to dismiss the complaint, this one on the basis of “res judicata”. The company argued that Ms.
Knezacky’s complaint was fundamentally intertwined with the couple’s divorce
proceedings to which Spruce Hollow and Mr. Weber had been named as parties. The
adjudicator dismissed this motion in an interlocutory award dated November 23,
2012, finding that res judicata had no application in this case, as no
other court or tribunal had decided the question before him: namely, whether
Ms. Knezacky had been unjustly dismissed by Spruce Hollow.
[24]
Recognizing, however, that there was the
potential for overlap between some of the issues in the unjust dismissal
proceeding and some of the issues in the matrimonial litigation, the
adjudicator decided that the unjust dismissal proceeding should be bifurcated into
an initial hearing on whether Spruce Hollow had just cause to terminate Ms.
Knezacky’s employment, with a subsequent hearing to occur on the question of
remedies if her dismissal was found to be unjust.
[25]
Finally, the adjudicator had difficulty scheduling
a date for the hearing from the time that Spruce Hollow retained counsel in or
around November of 2012 until August of 2013 as a result of the unavailability
of Spruce Hollow’s counsel, Mr. Madill, Mr. Weber, and Spruce Hollow’s
witnesses: see Spruce Hollow #1 at para. 15.
IV.
The Hearing on Liability, the Resulting
Decision, and its Judicial Review
[26]
The hearing on liability finally took place on
August 7, 2013. Ms. Knezacky appeared at the hearing without counsel. She
was, however, accompanied by a friend who was there to provide her with moral
support. Ms. Knezacky’s friend was a former employee of a company called
“Super H”, and was married to the sole director and shareholder of Super H.
[27]
Spruce Hollow sought to have Ms. Knezacky’s
friend excluded from the hearing on the basis that her presence could prejudice
the company in litigation between Spruce Hollow and Super H in the Supreme
Court of British Columbia.
[28]
The adjudicator refused this request, as well as
Spruce Hollow’s subsequent request for an adjournment, on the basis that Spruce
Hollow had failed to adequately explain how its interests in the British
Columbia litigation would be prejudiced by the presence of Ms. Knezacky’s
friend at the unjust dismissal hearing.
[29]
It was at this point that Spruce Hollow’s
counsel advised the adjudicator that the company intended to withdraw from the
hearing. The adjudicator warned Spruce Hollow that if the company chose to do
so, it would fail to satisfy the onus on it to establish that it had just cause
to terminate Ms. Knezacky’s employment. Despite the adjudicator’s
admonition, Spruce Hollow’s representative, its counsel and its witnesses all
chose to leave the hearing.
[30]
The adjudicator issued a decision on September
24, 2013, in which he described the difficulties that he had encountered in
moving this file forward because of the conduct of Spruce Hollow and its
representatives. The adjudicator further found that that as a result of its
withdrawal from the hearing, Spruce Hollow had failed to establish that it had
just cause to terminate Ms. Knezacky’s employment, and her complaint of
unjust dismissal was thus upheld. The adjudicator concluded by noting that a
further hearing would be scheduled to deal with the issue of remedies.
[31]
Spruce Hollow sought judicial review of the
adjudicator’s decision, and the company’s application came before Justice
Mosley in Spruce Hollow #1. Justice Mosley upheld the adjudicator’s
decision, noting that counsel for Spruce Hollow was also unable to explain to
him how the presence of Ms. Knezacky’s friend at the hearing could affect
the company’s case in the British Columbia Supreme Court: Spruce Hollow #1
at para. 37.
[32]
Justice Mosley further observed that
administrative tribunals are masters of their own procedure, and that Spruce
Hollow had not demonstrated that it had been prejudiced as a result of the
denial of an adjournment. He further found that the denial of the adjournment
was reasonable, particularly in light of the protracted nature of the
proceedings and the history of delay, which he found was primarily attributable
to the actions of Spruce Hollow and its “attempts to
block or derail the hearing of the complaint on its merits”: Spruce
Hollow #1 at para. 47.
[33]
Consequently, Justice Mosley dismissed Spruce
Hollow’s application for judicial review with costs, and with the direction
that the matter be remitted to the adjudicator to schedule a hearing on the
remedies available to Ms. Knezacky to be held as soon as practicable.
V.
The Decision Under Review
[34]
The hearing into the issue of remedies took
place on October 24, 2014. At this hearing, Spruce Hollow raised an objection
to the adjudicator’s jurisdiction to grant a remedy to Ms. Knezacky,
arguing for the first time that the unjust dismissal provisions of the Code
should not apply to her because she had been a manager. The adjudicator held
that having conceded liability, Spruce Hollow had waived any right that it may
have had to raise this argument. The adjudicator further determined, in the
alternative, that Spruce Hollow had not established that Ms. Knezacky had
in fact been a manager.
[35]
The adjudicator held that Ms. Knezacky was
entitled to $5,450.17 for lost income and expenses. No issue is taken by Spruce
Hollow with respect to this award.
[36]
After reviewing the difficult history of this
matter, the adjudicator also concluded that the reprehensible conduct of Spruce
Hollow and Mr. Madill were such that Ms. Knezacky should receive
$50,000 in aggravated damages, and $25,000 in punitive damages.
[37]
Spruce Hollow says that the adjudicator erred in
awarding punitive and aggravated damages on the facts of this case, or, in the
alternative, that the awards were excessive.
VI.
The Propriety of the Parties’ Affidavits and the
State of the Evidentiary Record
[38]
Before addressing the merits of Spruce Hollow’s
application, I note that both parties took issue in their memoranda of fact and
law with the content of the opposing party’s affidavit, although neither party
raised this as an issue at the hearing before me.
[39]
With one exception, Spruce Hollow’s objection is
entirely general in nature. Its memorandum of fact and law states only that
portions of Ms. Knezacky’s affidavit are prejudicial to the company as
they “are either irrelevant, based on hearsay … or
contain unnecessary ‘gloss or explanation’”.
[40]
Spruce Hollow raised a similar, unparticularized
objection to the affidavit that Ms. Knezacky filed in Spruce Hollow #1.
As Justice Mosley noted in that case, this left Ms. Knezacky in the
unenviable position of being left to respond to unspecified complaints about
the content of her affidavit: at para. 26.
[41]
Like Justice Mosley did in Spruce Hollow #1,
I find that Ms. Knezacky “did her best to present
the facts relevant to the dispute and based upon her own personal knowledge of
the events that have transpired as required”: at para. 27. Again like
Justice Mosley, I conclude that to the extent that any portion of her affidavit
consists of any unnecessary ‘gloss or explanation’
of the facts within her personal knowledge and relevant to the dispute, the
proper course is to simply disregard it.
[42]
The only paragraph in Ms. Knezacky’s
affidavit that Spruce Hollow actually identifies as being improper is paragraph
21(d), which relates to settlement discussions between the parties. Paragraph
21(d) of Ms. Knezacky’s affidavit also makes reference to documents at
Exhibit “B” to the affidavit. In actual fact, it
is Exhibit “V” to Ms. Knezacky’s affidavit
that attaches settlement offers made by each side to this litigation. I agree
with Spruce Hollow that paragraph 21(d) and pages 176-180 in Exhibit V to Ms. Knezacky’s
affidavit contain information relating to settlement discussions between Spruce
Hollow and Ms. Knezacky. While Ms. Knezacky has indicated that she is
prepared to waive the privilege that attaches to such documents, Spruce Hollow
has not. Accordingly, the information is subject to settlement privilege and
should therefore be struck.
[43]
Ms. Knezacky’s objection to Mr. Madill’s
affidavit was particularized. She submitted paragraphs 10, 15, 22-28, 30-39,
and 40 of Mr. Madill’s affidavit should be struck as hearsay or
unnecessary gloss and explanation. As I did with Ms. Knezacky’s affidavit,
to the extent that the affidavit consists of any unnecessary ‘gloss or explanation’ of the facts that were within Mr. Madill’s
personal knowledge and are relevant to the dispute, I will disregard them.
[44]
Before leaving the issue of the parties’
affidavits, I would make some additional observations with respect to the state
of the evidentiary record before me.
[45]
One of the difficulties with this case is that
there is no transcript of the hearing before the adjudicator, and thus no
complete record of what evidence was and was not before the adjudicator when he
made the decision at issue. The parties’ affidavits provide some information
in this regard, but many of the assertions of fact contained in their memoranda
are unsupported by affidavit evidence establishing that the evidence relied
upon was actually before the adjudicator.
[46]
This was a particular problem with Spruce
Hollow’s evidence, given that it bore the burden of establishing that the
adjudicator’s decision was unreasonable, and that his factual findings were
unsupported by the evidence before him.
[47]
For example, a number of the company’s
submissions are not supported by reference to the evidence: see for example,
paragraph 44 (a) to (j) of Spruce Hollow’s memorandum of fact and law.
[48]
Moreover, some of Spruce Hollow’s affidavit
evidence is inconsistent with the arguments that it advances. For example, in paragraph
11 of Mr. Madill’s affidavit he asserts that “the
adjudicator made it clear at the beginning of the [damages] hearing that he
did not want to waste time with evidence and argument regarding whether Spruce
Hollow had just cause to dismiss Ms. Knezacky”. At the same time,
at paragraphs 102 to 104 of its memorandum of fact and law, Spruce Hollow
faults the adjudicator for failing to expressly address evidence allegedly
given by Mr. Madill at the damages hearing to support Spruce Hollow’s
allegation that Ms. Knezacky had improperly used company funds to pay for
her personal expenses.
[49]
Other statements in Mr. Madill’s affidavit
have been demonstrated to be untrue: specifically, Mr. Madill’s claim at
paragraph 25 of his affidavit that Ms. Knezacky was reprimanded by a
British Columbia judge for doctoring evidence.
[50]
As a consequence, where the evidence of Mr. Madill
as to what went on at the hearings before the adjudicator conflicts with that
of Ms. Knezacky, I prefer that of Ms. Knezacky. I am, moreover, not
prepared to accept Spruce Hollow’s submissions as to errors allegedly committed
by the adjudicator where those submissions are not supported by evidence.
VII.
Did the Adjudicator Err in Rejecting Spruce
Hollow’s Argument that Ms. Knezacky was a Manager?
[51]
Spruce Hollow argues that the adjudicator erred
in concluding that Ms. Knezacky was not a manager. Subsection 167(3) of the Canada
Labour Code provides that the unjust dismissal provisions of the Code
do not apply to employees who are managers. The standard of review applicable
to a determination by an adjudicator as to whether a worker is an employee or
manager for the purposes of the Code is that of reasonableness: Lake
Babine Nation v. Williams, 2012 FC 1085 at para. 10, 418 F.T.R. 95; 6245820
Canada Inc. v. Perrella, 2011 FC 728 at para. 12, 412 F.T.R. 1.
[52]
At the same time, Spruce Hollow submits that it
was treated unfairly by the adjudicator, who, it says, did not allow it to
raise the question of whether Ms. Knezacky had worked as a manager at the
remedies hearing. To the extent that the company raises a question of
procedural fairness, the Court’s task is to determine whether the process
followed by the adjudicator satisfied the level of fairness required in all of
the circumstances: see Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12 at para. 43, [2009] 1 S.C.R. 339.
[53]
It is not accurate to say that the adjudicator prevented
Spruce Hollow from raising the question of whether Ms. Knezacky had been a
manager at the remedies hearing. The adjudicator did allow the company to raise
this issue at the remedies hearing, evidence was adduced by the company
relating to Ms. Knezacky’s responsibilities while she worked at Spruce
Hollow, and the matter was fully argued.
[54]
What the adjudicator did do in his decision on
remedies was to conclude that having conceded liability, Spruce Hollow had
waived it right to raise any more jurisdictional issues.
[55]
I agree with Spruce Hollow that this was an
error: Spruce Hollow’s argument went to the jurisdiction of the adjudicator,
and it is always open to a party to raise the issue of jurisdiction. As Justice
Rothstein (speaking as a judge of this Court) noted in MacNutt v.
Shubenacadie Indian Band, [1998] 2. F.C. 198 at para. 41, 138 F.T.R. 275, a
party to an administrative proceeding cannot “by waiver
or acquiescence, confer jurisdiction on a tribunal that was not, or could not
be, conferred by Parliament”.
[56]
The adjudicator’s error does not, however, affect
the outcome of this application as his alternative finding that Spruce Hollow
had not established that Ms. Knezacky was in fact a manager was
reasonable.
[57]
In assessing whether Ms. Knezacky had been
a manager at Spruce Hollow, the adjudicator applied the test established in Donio
v. Matawa First Nations Management Inc., [2007] C.L.A.D. No. 33, at para.
40. That decision identifies a number of factors that are to be considered in
determining whether a given employee is a manager. The majority of these
factors relate to the nature and extent of the employee’s responsibilities.
[58]
Spruce Hollow does not take issue with the test
applied by the adjudicator, submitting instead that the adjudicator’s factual
findings as to Ms. Knezacky’s responsibilities within the company were
unreasonable. I do not agree. Based on the evidence presented, it was
reasonable for the adjudicator to conclude that Ms. Knezacky lacked
significant autonomy, discretion, and authority in the conduct of Spruce
Hollow’s business.
[59]
The unusual feature of this case is that in
addition to being an employee of Spruce Hollow, Ms. Knezacky was also a
shareholder in the company, as well as a Director and creditor of the company.
However, the issue for determination by the adjudicator was not the nature of
her role in one of these other capacities, but the extent to which she had
autonomy, discretion, and authority in the conduct of her employer’s business
in her role as a company employee.
[60]
The fact that Ms. Knezacky described
herself as an “Administrative Officer Manager”
in her unjust dismissal complaint was not determinative of the issue. As the
adjudicator noted, “in matters such as this,
adjudicators should be more interested in substance than form”. Indeed,
this Court has held that “[t]he nature of the work
performed is more important than the title given to the worker”: Canadian
Imperial Bank of Commerce v. Torre, [2010] F.C.J. No. 85 at para. 17, 362
F.T.R. 232.
[61]
The Court went on in Torre to observe
that a manager “is a worker who performs administrative
rather than operational duties”, and that this “can
include persons at the upper or lower end of the management chain, depending on
the degree of independence the manager may have and the importance of the
management functions in question”. A manager must, however be “in a position of control”, and a “clear distinction is to be made between a ‘supervisor’ and a
‘manager’”. Finally, a person will not be found to be a manager if he or
she “is merely a conduit between the employees and a
higher body who is the actual decision-maker or makes recommendations to a
higher body that approves or disapproves his recommendations”: Torre,
above at para. 17.
[62]
Ultimately, the test for demonstrating that a
worker is a manager is whether that person had significant autonomy,
discretion, and authority in the conduct of the employer’s business. This
requires the satisfaction of two criteria: First, the worker must be engaged in
the administration of the employer’s affairs, and second, the worker must have
the power of independent action, autonomy and discretion in a significant range
of matters within her or his area of responsibility: Msuya v. Sundance Balloons
International Ltd., 2006 FC 321 at para. 23, 289 F.T.R. 85; Lake Babine
Nation v. Williams, above at paras. 49 and 52, 418 F.T.R. 95.
[63]
Spruce Hollow submitted to the adjudicator that Ms. Knezacky
was responsible for handling much of the day to day management of the office,
including participating in the hiring and firing of employees and being
involved in the creation of the employee manual. She also helped to supervise
employees, and she had signing authority and the power to bind the company to
contracts. In addition, Ms. Knezacky incurred expenses on behalf of the
company, purchasing office supplies and preparing the office budget. Spruce
Hollow also noted that Ms. Knezacky was paid the same or more than Mr. Weber,
Mr. Madill and Ms. Weber.
[64]
Dealing with this last point first, the
adjudicator found that Ms. Knezacky’s modest income was not indicative of
an employee with managerial authority. I agree with Spruce Hollow that the
issue was not the absolute dollar value of Ms. Knezacky’s income, but its
relativity to the salaries of the employees that she had identified as being
the company’s managers: Donio, above at para. 40. This error is not,
however, sufficient to undermine the overall reasonableness of the
adjudicator’s finding that Ms. Knezacky was not a manager.
[65]
After reviewing the conflicting evidence
regarding Ms. Knezacky’s role as an employee at Spruce Hollow, the
adjudicator concluded that she had no real autonomy, other than in her role as
a dispatcher. While she may have functioned as a collaborative member of a team
within what was a small trucking office, the adjudicator found that Ms. Knezacky
had no capacity to act independently, and that virtually all of her decisions
were subject to ratification by one or all of Mr. Weber, Mr. Madill
and Ms. Weber.
[66]
While Ms. Knezacky acknowledged that she
was involved in the creation of the employee manual, the adjudicator accepted
her evidence that the document had actually been prepared by Mr. Madill
and that Ms. Knezacky had simply typed it. Typing a document is clearly
not a managerial function.
[67]
The adjudicator further found that while Ms. Knezacky
may have been involved in the hiring of at least one employee, she had no
authority to hire anyone on her own. In a similar vein, the adjudicator noted
that while Ms. Knezacky acknowledged that she had limited cheque-signing
authority, Mr. Weber’s signature was also required on company cheques.
[68]
Spruce Hollow has not directed me to any
evidence that was in the record before the adjudicator that would undermine the
reasonableness of these findings.
[69]
Indeed, while Ms. Knezacky may have viewed
herself as being in a partnership with the other owners of the company, Spruce
Hollow presented little evidence demonstrating that she possessed any independent
authority in her capacity as an employee. While the evidence suggested that she
was to some extent involved in the decision-making process of the company, it
did not establish that she was able to independently make any decisions for the
company in her role as the company’s Administrative Office Manager. Rather, the
evidence showed that her ability to make decisions was subject to guidelines
provided by Mr. Weber, the majority owner of the company, or by Mr. Madill
as General Manager, or required their direct approval.
[70]
At the end of the day, the adjudicator applied
the correct legal test to the question of whether Ms. Knezacky was a
manager. He reviewed the evidence adduced by each side, explaining why, in his
view; the evidence adduced by Spruce Hollow did not support a finding that Ms. Knezacky
performed managerial functions within the company. The adjudicator’s findings
were reasonable, and no basis has been shown for this Court’s intervention.
VIII.
The Adjudicator’s Award of Punitive and
Aggravated Damages
[71]
The adjudicator concluded that the reprehensible
conduct of Spruce Hollow and Mr. Madill, both in relation to the
termination of Ms. Knezacky’s employment and with respect to these
proceedings, justified an award in her favour of $50,000 in aggravated damages,
and $25,000 in punitive damages.
[72]
While Spruce Hollow does not dispute the
jurisdiction of an adjudicator to award punitive and aggravated damages in the
appropriate circumstances, it takes issue with the awards made in this case.
Spruce Hollow submits that it was treated unfairly by the adjudicator in this
regard, as Ms. Knezacky only raised her claim for punitive and aggravated
damages at the damages hearing. Spruce Hollow further contends that the
circumstances of this case did not justify either award, or, in the
alternative, that the amounts awarded were excessive.
[73]
As will be explained below, I have not been
persuaded that Spruce Hollow was treated unfairly by the adjudicator. While I
do agree with Spruce Hollow that the awards of punitive and aggravated damages
were substantial, the adjudicator’s conclusion that they were warranted in this
case in light of the company’s behavior in this matter is one that was
reasonably open to him on the record before him.
A.
The Fairness Issue
[74]
Dealing first with the fairness issue, Spruce
Hollow notes that Ms. Knezacky only raised her claim for punitive and
aggravated damages on the morning of the damages hearing and that she had not
previously disclosed the documents on which she was relying in support of her
claim to the company.
[75]
However, with the exception of the medical note
discussed below, Spruce Hollow has not explained how it was prejudiced Ms. Knezacky’s
failure to claim punitive and aggravated damages earlier in the proceeding. In
particular, it has not asserted that there was any evidence that it was unable
to adduce in response to the claims, nor has it suggested that there were any
questions that it was unable to ask that were relevant to these claims.
[76]
Spruce Hollow’s fairness argument focussed on a
medical note which indicated that Ms. Knezacky would be medically unfit to
work for a period of three months. Spruce Hollow argues that had it been made
aware of this document in a timely manner, it could have contacted Ms. Knezacky’s
doctor in an effort to determine how much of her distress was attributable to
the breakdown of her marriage, and how much related to the circumstances
surrounding the loss of her employment. There are several difficulties with the
argument.
[77]
Many of the documents on which Ms. Knezacky
relied in relation to her claim for punitive and aggravated damages had already
been disclosed to Spruce Hollow. When Ms. Knezacky attempted to file a
brief of the documents on the morning of the damages hearing, Spruce Hollow was
given time to review the documents, and both affiants agree that the only
document with which the company took issue was a journal entry written by Ms. Knezacky.
No objection was taken by counsel for the company to the filing of the medical
note, nor is there any suggestion in the evidence before me that Spruce Hollow
advised the adjudicator that it had been prejudiced in any way by the late
disclosure of the medical note.
[78]
In these circumstances, I have not been
persuaded that Spruce Hollow was treated unfairly by the adjudicator in this
regard.
B.
The Award of Aggravated Damages
[79]
As a general rule, damages are not available to
an employee for injuries that result from the fact that they have been
terminated from their employment: Honda Canada Inc. v. Keays, 2008 SCC
39 at para. 50, [2008] 2 S.C.R. 362; Wallace v. United Grain Growers,
[1997] 3 S.C.R. 701 at paras. 73, 75, 88-89, [1997] S.C.J. No. 94.
[80]
An employee may, however, be awarded damages for
injuries, including mental distress, caused by the manner of their dismissal,
where the employer engages in conduct that is unfair or is in bad faith, such
as being untruthful, misleading or unduly insensitive. This flows from the
employer’s obligation to act in good faith and deal fairly with their employees
when they are dismissed. Where the employer breaches that obligation, the
resulting injury to the employee will be compensable: Honda Canada Inc.,
above at paras. 57-58, [2008] 2 S.C.R. 362; Wallace, above at para. 95.
[81]
Where aggravated damages are warranted, they are
awarded as compensation for the injury suffered by the employee. As a result,
the amount awarded must reflect the actual damages or injury incurred by the
employee as a result of the employer’s conduct. It is not enough for the
employee to simply demonstrate that the employer breached their duty of good
faith and fair dealing. Rather, the employee must also show that the employer’s
conduct in fact caused them some injury: Honda Canada Inc., above at
para. 59; Fernandes v. Penncorp Life Insurance Co., 2014 ONCA 615 at
para. 90, 122 O.R. (3d) 192.
[82]
In determining the appropriate quantum of
damages, the Court should explain how it arrived at a particular figure, or
identify what evidence justifies that amount. Further, the award should not be
inordinately high or disproportionate given the circumstances of the case or
the analogous case law: Fernandes, above at para. 100; Joseph v.
Tl’azt’en First Nation, 2013 FC 767 at para. 40, 436 F.T.R. 79.
[83]
In coming to the conclusion that the circumstances
of this case warranted awards of both punitive and aggravated damages, the
adjudicator correctly noted that aggravated damages are intended to be
compensatory in nature, whereas punitive damages are intended to punish a party
for malicious, high-handed or oppressive conduct that offends the adjudicator’s
sense of decency.
[84]
In determining that an award of aggravated
damages was appropriate in this case, the adjudicator found that the conduct of
Spruce Hollow and Mr. Madill was malicious, harsh and vindictive, that it
demonstrated contempt for the judicial process, that it was abusive of Ms. Knezacky
in the extreme, and that she had suffered greatly as a result.
[85]
In support of this conclusion, the adjudicator
noted the assurances that were repeatedly given to Ms. Knezacky by Mr. Weber
that the company would address Mr. Madill’s abusive behaviour of her –
assurances that continued right up until the termination of her employment.
[86]
The adjudicator also noted Spruce Hollow’s
decision to appoint Mr. Madill as its representative in the proceedings,
and his continual obstruction of the proceedings itself. The adjudicator
observed that Justice Mosley had commented on the impropriety of the company
insisting on having Mr. Madill as its representative, and his comment that
this was “at best, an attempt to stall the proceedings
and at the worst, intimidation”, Spruce Hollow #1, above at para.
50. Having had the opportunity to observe the conduct of the parties throughout
these protracted proceedings, the adjudicator found that “the truth lies more in the latter than the former”.
[87]
The adjudicator also found that the conduct of Mr. Madill
in securing the termination of Ms. Knezacky’s employment on charges that
were false and even fraudulent, which was then compounded by his bullying and
intimidation of her throughout the proceedings “was
malicious, harsh and vindictive”.
[88]
Although it was not specifically mentioned by
the adjudicator, it is noteworthy that despite Justice Mosley’s finding that Mr. Madill’s
involvement as the company representative in the unjust dismissal proceedings
was improper, and Spruce Hollow’s admissions before me that the choice of Mr. Madill
as the company representative “was clearly the wrong
choice”, Mr. Madill appeared as Spruce Hollow’s representative at
the damages hearing and, I note, at the hearing before this Court.
[89]
Spruce Hollow asserted that the reason for Mr. Madill’s
continued involvement in the case was that he was the company representative
most intimately acquainted with the issues, submitting that it should not be precluded
from having the benefit of his assistance. I note, however, that this argument
is totally unsupported by the evidence, and that the only explanation that has
ever been provided for Mr. Madill’s involvement in this matter was that
Mr. and Ms. Weber were “not comfortable” doing
so.
[90]
The adjudicator also relied on the fact that Ms. Knezacky
had been locked out of her workplace by Mr. Madill, and that she had that
she had been terminated from her employment without any advance warning, and
with no reasons being given for her termination. Spruce Hollow argues that the
adjudicator erred in this regard, as reasons were given in its second letter of
August 31, 2013, and that these reasons had been sufficient for the HRSDC
inspector appointed to look into this matter.
[91]
This misses the point: whatever an inspector may
have thought about the interpretation of the two August 31 letters in the weeks
or months after the termination of Ms. Knezacky’s employment, the fact is
that she was summarily terminated from her employment – a job in which she
evidently took great pride - without being provided with any justification for
the company’s actions.
[92]
I do agree with Spruce Hollow that it was
unreasonable for the adjudicator to fault the company for not providing Ms. Knezacky
with a copy of the reasons that it produced in response to the adjudicator’s
October 24, 2012 order. This is because the adjudicator had specifically
directed the company to deliver its reasons to the adjudicator’s office, and
that once the adjudicator was satisfied with the form and content of the
document; he would provide it to Ms. Knezacky himself. This is, however, a
minor error, and its effect is inconsequential, given the numerous other
reasons cited by the adjudicator for his award of aggravated damages.
[93]
Insofar as the reasons themselves were
concerned, the adjudicator noted that the document produced by Spruce Hollow
alleged actions on the part of Ms. Knezacky “which
must be considered to be amongst the most egregious of causes, which, if true,
would easily support her termination”. These were Ms. Knezacky’s
alleged:
1.
Misdirection of company funds;
2.
Removal of company assets;
3.
Dishonesty to ownership and management;
4.
Fraudulent manipulation of the corporate minute
book;
5.
Unauthorized purchases made with company funds;
6.
Failure to file corporate taxes;
7.
Failure to pay corporate taxes;
8.
Failure to attend a required meeting with
ownership;
9.
Unauthorized use of a company vehicle; and
10.
Failure to follow all directions and respond to
management.
[94]
The adjudicator further observed that “[t]he nature of the charges generally purport to impugn [Ms. Knezacky’s]
character and integrity. Some allege actions of a criminal nature and moral
turpitude such as misdirection of company funds or fraudulently manipulating
corporate minute book”, while others “accuse her
only of making unauthorized purchases or activities involving non-feasance”,
and one “simply alleges that she was insubordinate in
that she failed to follow all directions and respond to management”.
[95]
Spruce Hollow has not taken issue with the
adjudicator’s characterization of the reasons given for Ms. Knezacky’s
termination and I find that it was entirely reasonable.
[96]
The adjudicator went on to observe that “charges of that nature carry with them a heavy duty on the
Employer to diligently prosecute and prove them without which they necessarily
must be seen as defamatory of the employee’s reputation and character and may
properly support a claim of aggravated damages under proper circumstances”.
Having failed to tender evidence to support its allegations, it was reasonable
for the adjudicator to find that the making of these allegations supported an
award of aggravated damages, particularly when regard is had to the fact that
Spruce Hollow did not confine itself to defaming Ms. Knezacky in the
document in issue, but repeated its claims to others in an attempt to dissuade
other companies from hiring her.
[97]
The adjudicator also had regard to the fact that
Mr. Madill had filed a complaint with the Abbotsford Police in June of
2012, in his capacity as General Manager of Spruce Hollow, alleging that Ms. Knezacky
had stolen assets and money from Spruce Hollow. This claim was evidently
unsupported by evidence and went nowhere, but not before Ms. Knezacky was
put to the embarrassment and distress of being subjected to a police interview.
[98]
The adjudicator also found that Spruce Hollow
had subjected Ms. Knezacky to the intentional and malicious infliction of
mental distress, embarrassment, hardship, loss of self-esteem and dignity based
on Spruce Hollow’s filing of two false T-4’s with the Canada Revenue Agency
that grossly inflated Ms. Knezacky’s income for 2011. This led to a
two-year long battle between Ms. Knezacky and the CRA before the matter
was finally resolved in her favour.
[99]
The record shows that the additional amounts
that were included by Spruce Hollow in Ms. Knezacky’s T-4s were not
income, but related to the repayment of some of the monies that she had
advanced to the company, and were recorded as such in the company’s ledgers.
Consequently, the adjudicator’s finding in this regard was reasonable.
[100] The adjudicator further found that Spruce Hollow had falsely
completed Ms. Knezacky’s Record of Employment so that she would be denied
unemployment benefits, and that she had been prevented from retrieving her
personal items from the office.
[101] In light of the foregoing findings, the adjudicator’s determination
that Spruce Hollow’s actions were motivated by actual malice was one that was
amply supported by the evidence. More importantly, insofar as the question of
aggravated damages is concerned, the adjudicator’s finding that Spruce Hollow
made its allegations against Ms. Knezacky “with a
reckless disregard whether they were true or not, causing [Ms. Knezacky]
mental distress, embarrassment, hardship and a loss of her self-esteem and
dignity” was also one that was reasonably open to him on the record
before him.
[102] The adjudicator also found that Mr. Madill and Spruce Hollow
had repeatedly attempted to stall and delay these proceedings – a finding which
was endorsed by Justice Mosley in Spruce Hollow #1. Spruce Hollow
submits that it was unreasonable for the adjudicator to put all the blame for
the delay on the company, and that the adjudicator failed to have regard to the
fact that Ms. Knezacky was initially reluctant to pursue this matter.
[103] However, as was noted earlier, Ms. Knezacky’s initial
reluctance to pursue this matter stemmed from her fear of Mr. Madill, and
the fact that he had been designated as the company representative in the
unjust dismissal proceedings. Moreover, Ms. Knezacky quickly got over her
reluctance and attempted to move the matter forward, only to be met by
resistance and delay on the part of her former employer.
[104] In light of all of the above circumstances, the adjudicator held
that Ms. Knezacky was entitled to an award of aggravated damages for the
suffering that she endured. I agree with Ms. Knezacky that this finding
was amply supported by the record before the adjudicator and was reasonable.
[105] In arguing that the adjudicator’s damages awards were unreasonable,
Spruce Hollow has attempted to pick away at the periphery of a number of the
adjudicator’s findings, taking issue, for example, with the adjudicator’s use
of the word “stealing” in referring to the removal
of Ms. Knezacky’s vehicle on August 30, 2011, suggesting that it
unreasonably attributed wrongdoing to the company, who was in fact the legal
owner of the vehicle.
[106] What the adjudicator actually said was that Ms. Knezacky “was awoken by the sound of someone apparently
stealing her car” [my emphasis]. The adjudicator is in no way deciding
the issue of the ownership of the vehicle with this comment, as Spruce Hollow
seems to suggest. Given that the car was taken from Ms. Knezacky’s
temporary residence in the middle of the night by unknown individuals, the
adjudicator’s language seems to be an entirely apt description of the
situation.
[107] Spruce Hollow also takes issue with the adjudicator’s finding that
not only had Ms. Knezacky been locked out of her office, but the removal
of her vehicle meant that she had no way to get to the office. In challenging
this assertion, Spruce Hollow points out that Ms. Knezacky could have
asked for rides from friends or taken public transport. While this may be true,
it really misses the adjudicator’s point, which was that after being locked out
of her workplace, Ms. Knezacky’s usual mode of transportation was then
taken away from her, thereby compounding the injury that she had suffered.
[108] Spruce Hollow asserts that even if an award of aggravated damages
was reasonable in the circumstances of this case, an award of $50,000.00 was
grossly excessive, particularly in light of the fact that Ms. Knezacky did
not produce “extensive medical evidence”
supporting her claim for aggravated damages. According to Spruce Hollow, the
adjudicator conflated the concepts underlying awards of punitive and aggravated
damages, and that the award of aggravated damages was itself punitive. Finally,
Spruce Hollow submits that the adjudicator erred, as he did not attempt to
segregate out the mental distress that Ms. Knezacky felt as a result of
the loss of her employment from that she was suffering as a result of the
breakdown of what had, for many years, been an unhappy marriage.
[109] The law does not, however, require medical evidence, extensive or
otherwise, as a precondition to an award of aggravated damages. Ms. Knezacky
was only required to provide evidence that Spruce Hollow’s conduct resulted in
an injury to her reputation, dignity and integrity, or caused her mental
distress. The evidence before the adjudicator overwhelming supported such a
finding.
[110] Spruce Hollow’s argument that the adjudicator was required to
disentangle the harm caused by the break-up of her marriage from that caused by
the dismissal also mistakes the degree to which the award for her injury must
be particularized. The awarding of aggravated damages is compensation for a
non-pecuniary injury, and therefore resists precise quantification. As a
result, the compensation is made as a global award considering the relevant
evidence. This was exactly how the adjudicator approached the issue in this
case.
[111] Spruce Hollow’s argument also ignores the evidence regarding the
extent to which the company allowed Mr. Madill to infect the employment relationship
with his animus toward Ms. Knezacky stemming from the breakdown of their
marriage. It is disingenuous for Spruce Hollow to now suggest that the
adjudicator’s decision should be set aside for failing to distinguish between
the injury resulting from the termination and the injury resulting from the
separation.
[112] The adjudicator was also careful to separate his award of punitive
damages from that of aggravated damages, reducing the award of punitive damages
to take into account the fact that substantial aggravated damages had already
been awarded. The circumstances relied upon by the adjudicator to support his
award of aggravated damages would, moreover, cause extreme distress and
embarrassment to anyone, and would be all the more difficult to bear by someone
already going through the upset of an acrimonious marital breakdown.
[113] The adjudicator identified the facts on which he relied in finding
that an award of aggravated damages was appropriate in this case, and his
findings were amply supported by the evidence. Moreover, while the adjudicator
accepted that the circumstances surrounding the termination of Ms. Knezacky’s
employment were intertwined with the breakdown of the marriage, it is
nonetheless clear from paragraphs 43 to 46 and 51 of the adjudicator’s reasons
that the circumstances relied upon by the adjudicator to support his award of
aggravated damages all related directly to the loss of Ms. Knezacky’s
employment with Spruce Hollow. No basis has thus been established for
interfering with the adjudicator’s award of aggravated damages.
C.
The Award of Punitive Damages
[114] As noted earlier, the adjudicator also awarded Ms. Knezacky the
sum of $25,000 in punitive damages. In making this award, the adjudicator found
that Spruce Hollow’s conduct in this matter warranted such punishment based on
the harassment Ms. Knezacky suffered from Mr. Madill, and the
contrived reasons that the company provided for her dismissal. The adjudicator
found this behaviour to be both malicious and oppressive, and it offended the adjudicator’s
sense of decent human behaviour.
[115] The adjudicator noted, however, that the case law directed him to be
mindful that an award of punitive damages should not be “inordinately large” when added to an award of
compensatory damages, and that an award of punitive damages should not be more
than is rationally required in the circumstances to punish the defendant,
citing the Supreme Court’s decision in Whiten v. Pilot Insurance Co,
2002 SCC 18, [2002] 1 S.C.R. 595.
[116] As a result, the adjudicator – despite his “abject
disapproval” for Spruce Hollow’s conduct both during these proceedings
and in terminating Ms. Knezacky – restricted his award of punitive damages
to $25,000.00.
[117] The Supreme Court observed in Hill v. Church of Scientology of
Toronto, [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129, that an award of
punitive damages is appropriate where a defendant’s behaviour “is so malicious, oppressive and high-handed that it offends
the court’s sense of decency”. The Court went on to observe that
punitive damages are not intended to be compensatory, but are intended to
punish the defendant. Punitive damages are “the means
by which the jury or judge expresses its outrage at the egregious conduct of
the defendant. They are in the nature of a fine which is meant to act as a
deterrent to the defendant and to others from acting in this manner”: Hill,
above at para. 196.
[118] The Court went on to note that punitive damages “should only be awarded in those circumstances where the
combined award of general and aggravated damages would be insufficient to
achieve the goal of punishment and deterrence”: Hill, above at
para. 196.
[119] The test for awarding punitive damages in the employment context is
three-pronged. First, as noted earlier, the employee must show that the
defendant’s conduct is reprehensible, meaning that it is malicious, oppressive
and high-handed: Whiten, above at para. 36; Boucher v. Wal-Mart
Canada Corp., 2014 ONCA 419 at para. 79, 120 O.R. (3d) 481.
[120] Second, it must be shown that an award of punitive damages award on
top of a compensatory award, “is rationally required to
punish the defendant and to meet the objectives of retribution, deterrence and
denunciation”: Boucher, above at para. 79.
[121] Finally, where, as here, the claim arises the employment context,
the employee must show that the employer committed an independent actionable
wrong. The employee is not required to show that the employer committed a
free-standing tort or that they have an independent cause of action, but rather
that the employer breached a distinct contractual provision or other duty,
including either a fiduciary obligation or the duty of good faith and fair
dealing in termination: Whiten, above at paras. 79-82; Boucher,
above at para. 80.
[122] Awards of punitive damages must be governed by the principle of
proportionality, which encompass the following factors:
1.
The blameworthiness of the defendant’s conduct;
2.
The vulnerability of the plaintiff;
3.
The harm or potential harm of the conduct to the
plaintiff;
4.
The need for deterrence;
5.
The amount of any other damage awards; and
6.
The amount of any resulting unjust enrichment: Whiten,
above paras. 112-126.
[123] In this case, the adjudicator identified the correct legal
principles relating to awards of punitive damages, specifically considering the
guidance provide by Whiten, Hill, and Boucher. He reviewed
the evidence and concluded that Spruce Hollow’s conduct was malicious, harsh
and vindictive. He found that Spruce Hollow had violated its duty of good faith
and fair dealing during the course of Ms. Knezacky’s termination, and that
this conduct supported an award of punitive damages.
[124] Spruce Hollow argues that the adjudicator failed to identify the “independent actionable wrong” committed by the
company. While it is true that the adjudicator never used the phrase “independent actionable wrong” in his reasons, it is
clear from a review of the decision as a whole that he found that Spruce Hollow
acted in an untruthful, defamatory and misleading manner during the course of Ms. Knezacky’s
termination and afterwards, and that it breached its duty of good faith and
fair dealing. This satisfies the requirement for establishing an independent
actionable wrong, and demonstrates that the adjudicator’s award of punitive
damages was “the product of reason and rationality”:
Elgert v. Home Hardware Stores Ltd., 2011 ABCA 112, citing Whiten
above at para 36.
[125] Insofar as the quantum of the award is concerned, Spruce Hollow
alleges that the adjudicator’s award was excessive, and that he failed to have
regard for the fact that Spruce Hollow was a small company. In support of this
contention, Spruce Hollow suggests that the adjudicator’s reliance on the Honda
and Boucher cases was misplaced, as the employers in those cases were
huge companies.
[126] In particular, Spruce Hollow argues that the adjudicator erred in
relying upon the decision of the Ontario Court of Appeal in Keays v. Honda
Canada Inc., (2006), 82 O.R. (3d) 161, 274 D.L.R. (4th) 107, as support for
a large award of punitive damages, without regard for the fact that fact that
the Ontario Court of Appeal’s decision was overturned by the Supreme Court of
Canada.
[127] There are two problems with this submission: the first is that the
adjudicator referred to the amounts awarded in Boucher and Honda
in the context of his analysis of the issue of aggravated damages and not
punitive damages. The second is that I do not read the adjudicator’s reasons as
suggesting that the cases established a benchmark in relation to the measure of
punitive damages to be awarded in a given case.
[128] The adjudicator was clearly aware of the size of Spruce Hollow, and
he considered the amount of punitive damages that was rationally required to
punish the company’s egregious behaviour given his other damage awards,
arriving at the figure of $25,000.00. Spruce Hollow had not established that
the award was excessive in all of the circumstances.
IX.
Conclusion
[129] For these reasons, Spruce Hollow’s application for judicial review
is dismissed.
[130] Ms. Knezacky was self-represented before me and has provided a
list of the expenses that she has incurred, both in defending this application
on its merits, and in relation to a motion brought by Spruce Hollow to stay
execution of the adjudicator’s remedial decision. Justice Hughes ordered that
the costs of that motion be in the cause.
[131] I have reviewed Ms. Knezacky’s list of expenses, and have
concluded that they are reasonable, including her claim for compensation for
the time that she had to take off work. Costs will therefore be awarded to Ms. Knezacky
fixed in the amount of $6,674.38, inclusive of GST.
[132] In the event that the monies awarded to Ms. Knezacky by the
adjudicator are not paid to her within 30 days of this order (including accrued
interest), then the monies that have been paid into Court by Spruce Hollow
pursuant to the order of Justice Hughes are to be released to Ms. Knezacky,
and she will be at liberty to satisfy the remainder of the judgment out of the
bond that has been posted by Spruce Hollow as security in this matter.
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