1.                 This is an application for review pursuant to section 116 of the Employment Standards Act, 2000, S.O. 2000, c.41, as amended (the “Act”).

2.                 Moore Packaging Corporation (“Moore”) is a manufacturer of corrugated boxes and is located in Barrie, Ontario.

3.                 Ms. Bowen commenced her employment with Moore in 1994.  She resigned in 1997 (after filing a complaint under the Act with what is now known as the Ministry of Labour, Immigration, Training and Skills Development (“MOL”)), however she was subsequently rehired in 1998 and continued in her employment until April 22, 2020 when Moore terminated her employment for purported just cause.  At all relevant times she was employed as an Account Manager (a travelling commissioned salesperson).  Her duties included, among other things, travelling to client sites located in and around Barrie, Toronto, London and elsewhere.  There was no evidence put before the Board of Ms. Bowen’s annual earnings although she was paid commission earnings.

4.                 The only remaining issues in dispute are whether Ms. Bowen is entitled to payment of a sales bonus for fiscal year 2018 (“2018 bonus”) and her allegation that Moore violated section 74 of the Act by way of, among other things, the manner in which it attempted to accommodate her medical limitations and, ultimately, by terminating her employment.  Moore denies that it reprised against Ms. Bowen and asserts that she made claims under the Act as part of a plan to set up a reprisal claim.  It says it was attempting to accommodate her limitations in good faith and that it terminated her employment before she could make good on her “threat” to damage the company.  It denies that Ms. Bowen is entitled to the 2018 bonus. 

5.                 The balance of Ms. Bowen’s claim was resolved by way of an Interim Order see; Lesa Bowen v Moore Packaging Corporation, 2021 CanLII 49692 (ON LRB) (”Bowen”).  That Interim Order was issued over the objection of the applicant after Moore offered to make a voluntary payment (without admission of liability) of certain amounts agreed to be owing for unauthorized deductions and the requirement to work on Family Day.  The Board made no finding of a violation of the Act as it relates to the matters underlying the Interim Order to Pay.  Those claims are briefly addressed later in this decision in the context of Ms. Bowen’s reprisal claim.

6.                 Ms. Bowen bears the onus to demonstrate her entitlement to be paid the 2018 sales bonus.  The relevant provisions of the Act provide as follows:

7.                 Subsection 74(1)(a) of the Act states, in relevant part, as follows:

8.                 As section 74(2) makes clear, Moore bears the onus of proof to demonstrate that it did not engage in reprisal against Ms. Bowen. 

9.                 I will refer to the position of the parties and the evidence of the various witnesses as necessary in setting out the narrative of this application.  In the context of the argument put forward by the parties it is necessary to review the evidence in some detail.  Despite the length of the hearing, the basic facts are largely not in dispute.  What is in dispute is how the facts and the alleged motives of the respective parties should be interpreted. 

10.              This hearing was held over the course of 14 days with some of that time taken up dealing with disputes between the parties about various procedural issues, see; Lesa Bowen v Moore Packaging Corporation, 2021 CanLII 47575 (ON LRB), Bowen, supra, and Lesa Bowen v Moore Packaging Corporation, 2021 CanLII 51794 (ON LRB).  The Board received 120 exhibits into evidence and heard from six witnesses.   Testifying on behalf of Moore were Dan Faber, President, Pam White, Director of People Resources and Jeff Abbott, Director of Sales.  Testifying on behalf of Ms. Bowen were two former Moore employees; Melissa Hewlett, Customer Service Representative and Nick Stocki, Account Manager.  Mr. Stocki’s employment was terminated without cause in or about January 2022, and Ms. Hewlett resigned her employment sometime in August 2020.  Ms. Bowen advised of her intention to call Ms. Hewitt and Mr. Stocki as witnesses in this proceeding after Mr. Faber had completed his testimony.  I nonetheless allowed Ms. Hewlett and Mr. Stocki to testify and permitted Moore to call further evidence from Mr. Faber in reply. Ms. Bowen testified on her own behalf. 

11.              I have carefully considered the evidence of each of the witnesses.  As a general comment, I found Ms. Bowen at times to be evasive and argumentative.  She was cautioned by the Board at least six times to answer the questions put to her by Moore’s counsel without objection and in some cases only responded after the I was required to put the question to her directly.  Moore argues that the Board should conclude that Ms. Bowen’s conduct undermines her credibility.  I will address this issue to the extent that it is necessary in the course of this decision. 

12.              The Board heard a considerable amount of evidence about Ms. Bowen’s various attempts to obtain enforcement with the Act.  As will be discussed later in this decision the substantive merits of her complaints, barring obvious bad faith, are not germane to the Board’s determination under section 74.  For these reasons, I will only briefly describe the nature of Ms. Bowen’s complaints under the Act.

13.              Ms. Bowen resigned her employment and filed a complaint under the Act with the MOL in or about 1997 claiming that Moore made unauthorized deductions from her commissions.  It is unclear whether that complaint resulted in the issuance of an Order to Pay as no such Order was put before the Board.  In any event, the matter was resolved by way of a payment by Moore without resort to the Board.  Ms. Bowen asserts that the 2019 and 2020 events at issue in this application constitute reprisal because of the 1997 complaint “was always in the back of [Moore’s] mind” although she acknowledged that the reprisal would be “diluted”. 

14.              In or about early 2017 Ms. Bowen raised with Mr. Abbott the issue of payment of display bonus for fiscal year 2016 (“2016 display bonus”).  That claim is statute barred and is not at issue in this application except as occasion in which Ms. Bowen sought enforcement of the Act.  Moore rejected her claim for payment and Ms. Bowen did not pursue the matter further at that time.  Mr. Faber testified that he was not personally aware of the complaint.

15.              In or about early 2019, Ms. Bowen raised the issue of payment of a sales bonus for fiscal year 2018 (“2018 sales bonus”) with Mr. Abbott.  That claim forms part of the application at issue before the Board.

16.              Moore determined that Ms. Bowen was not entitled to the sales bonus because she did not make 100% of her sales target.  Ms. Bowen does not dispute that fact.  However, she testified that over the years two other Account Managers, Corey Pavlick and Rob Andrews, had been paid a sales bonus despite not making the entirety of that person’s sales target because it was Moore’s practice to round up and pay the bonus if someone “got close”.   While Ms. Bowen identified specific persons to whom she said was paid in those circumstances, neither Mr. Andrews nor Mr. Pavlick were called to testify, and the matter was not put to any of the witnesses with the exception of Mr. Faber.  He testified that he had reviewed Moore’s records for the period 2015 to 2019 and found nine Account Managers who reached more than 95% but less than 100% of target but who were not paid a bonus.  No documentary evidence was put before the Board.  Moore argues that the Board should prefer Mr. Faber’s evidence over the hearsay evidence proffered by Ms. Bowen. 

17.              In June 2019, Ms. Bowen advised Mr. Abbott that she wished to discuss a “transition plan” with Moore.  Ms. Bowen, Ms. White, Mr. Abbott and Stephen Moore, Director of Corporate Strategy, met on September 27, 2019 and again on October 2, 2019 to discuss the matter.  Ms. Bowen indicated that she did not wish to be a self-employed agent (something that was previously offered to Ms. Bowen in 2014 further to her request), but that she wanted to decrease the size of her customer portfolio, spend more time in Florida and ideally keep all of her benefits.  There is some dispute between the parties about whether she said she wanted to transition to retirement.  However, Ms. Bowen agreed with the accuracy of Ms. White’s notes of the October 2, 2019 meeting wherein there is a reference to an earlier meeting on September 27, 2019 when the parties met to “discuss options to transition toward retirement”.  According to the September 27, 2019 meeting notes, Ms. Bowen indicated that the transition arrangement would be for a maximum two year period after which she would be “out completely”. 

18.              At the October 2, 2019 meeting Moore offered Ms. Bowen the opportunity to (1) retire, (2) continue in her role as an Account Manager with no changes to the terms and conditions of her employment, or (3) transition to retirement in under the terms of an agency agreement pursuant to which she would earn commissions but have no car allowance or health and welfare benefits.   On November 4, 2019, Moore provided Ms. Bowen with a copy of a draft agency agreement which provides, in part, that Moore “accept[s] your decision to retire your fulltime employment”.  According to the notes of the October 2, 2019 meeting, Ms. Bowen said that she felt Moore had spent zero time putting together a proposal and did not get creative.  This is consistent with Mr. Abbott’s testimony that Ms. Bowen asked him to be “kind” when considering a proposed transition arrangement.  On November 12, 2019 Ms. Bowen advised via email that she had “not made a decision to retire” and she continued in her role as an Account Manager.

19.              Moore says what followed was all because Ms. Bowen did not get the kind of personalized retirement package that she was looking for.  The thrust of Moore’s argument is that Ms. Bowen undertook a plan to “extort” a payment from Moore.   Ms. Bowen disagrees and asserts that everything she did was done in good faith.

20.              On November 28, 2019 Ms. Bowen asked for an accommodation pursuant to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).  She provided Moore with a doctor’s note which indicates that she had developed severe arthritis in her neck over the preceding 18 months and that her condition was aggravated by commuting from Barrie to Toronto, something that she routinely did as an Account Manager.  Her doctor recommended as follows:

21.              When asked if he was frustrated by the accommodation request, Mr. Faber said he found the request suspicious because it came 16 days after she responded to the agency agreement and because there had been no previous indication of any form of medical limitation.  It is Moore’s position (in the context of what ways yet to come) that Ms. Bowen’s request for accommodation was, in effect, a ruse arising from her inability to obtain the kind of transition plan that she wanted and that it was part of her plan to extract a severance  package from Moore. 

22.              On December 16, 2019, Ms. White requested further information about Ms. Bowen’s relevant medical restrictions and limitations, the estimated duration of any restrictions and limitations as well as her prognosis for future recovery.  That letter goes on to ask Ms. Bowen to provide a log of all of her business related travel for the preceding 90 days so Moore could “properly assess your physician’s recommendations to reduce the amount of driving”.  Attached to that letter is correspondence to Ms. Bowen’s treating physician which notes that “driving to customer locations to attend meetings is a significant and essential duty of the position”.  The letter asks for details of the amount of time that Ms. Bowen could  drive on a daily and weekly basis. 

23.              Ms. Bowen never provided the requested log because she construed it to be a change to the terms and conditions of her employment.  However, by way of a letter dated December 30, 2019 she did provide a rough estimate of the hours she says she spent driving in September (55 hours), October (50 hours) and November 2019 (60 hours).  In that same letter Ms. Bowen asserted that driving was not a “significant and essential” duty of her position and that she could perform her job by making a greater use of email, text, telephone, conference calls and Skype and by using the Go Train and Uber to travel to customer site, and finally, by requesting colleagues, couriers, and Moore’s trucks to pick up samples or other items or accepting offers from local customers to pick up samples from Moore’s offices.  As will be seen, most but not all of Ms. Bowen’s proposals were adopted by Moore and included as part of its proposed accommodation plan.

24.              Ms. Bowen was vigorously cross examined on her position that driving did not constitute an essential duty of her position.  At best, she was evasive in response to those questions; she first agreed then disagreed.  However, she finally agreed that up until she provided her doctor’s note, driving was a “significant and essential” part of her job.  That acknowledgement came after being repeatedly cautioned to respond to the question asked by Moore’s counsel and only after being asked the same question directly by the Board.     

25.              On January 9, 2020 Moore requested additional information about the amount of time that Ms. Bowen drove in December 2019, how often she spent driving for business and how she organized her time in terms of client meetings.  Ms. Bowen provided the requested information indicating that she drove for business every day and that she drove, respectively, 19, 21, 20 and 19 hours per week in each of September, October, November and December, 2019.   There was no dispute that she drove roughly 20 hours per week on average or 50% of her regular weekly working hours.

26.              On January 21, 2020, Ms. Bowen sent an email (the “commission email”) to Mr. Abbott asserting that Moore’s past practice of making certain deductions from commissions owing was a breach of the Act.  She asked that she and all of the other Account Managers be paid all commissions owing within 10 days, failing which she would file a complaint under the Act claiming unpaid wages.  This claim for unpaid wages was resolved by way of the Board’s Interim Order; see, Bowen, supra.    

27.              Mr. Abbott did not respond to the commission email however, Ms. Bowen asserts that he acted “coolish” after that, an alleged reprisal.  It is not clear how this conduct, if true, constitutes a penalty, but in any event this allegation was never put to Mr. Abbott therefore I decline to address the matter. 

28.              Mr. Abbott forwarded the commission email to Ms. White and Mr. Faber 16 minutes after he received it, and 35 minutes after that Ms. White organized a meeting for the next day (January 22, 2020) the subject of which was “commission complaint”.  Ms. Bowen argues that Moore’s swift reaction to her attempt to obtain compliance with the Act underscores how frustrated Moore was by her.   She argues that the alleged practice of making commission deductions represents hundreds of thousands of dollars to Moore and for that reason it embarked on a plan to “get rid” of her through a series of reprisals. 

29.              Ms. White testified that because she was relatively new to Moore she wanted to gather information about the commission practices and while they discussed the matter, the subject matter of the meeting was taken over by the receipt of Ms. Bowen’s medical information that it received the morning of the January 22, 2020 meeting (addressed later in this decision).

30.              Mr. Faber further testified that he did not feel the commission email had any merit and that he did not consider changing the commission policy at that time.  He did admit in cross examination that the commission holdbacks were stopped in late April or May 2020 as a result of the effect of the COVID-19 pandemic on Moore’s customer but not because of Ms. Bowen’s correspondence.  He further acknowledged that any claim under the Act would take time and money to defend.  Mr. Faber testified that he had concerns about the complaint coming in the context of Moore’s attempts to accommodate Ms. Bowen’s driving restrictions.  However, he also repeatedly testified that Moore was attempting to deal with these matters separately.

31.              On January 22, 2020, Ms. Bowen provided Moore with the medical information it requested on December 16, 2019.  Her doctor indicated that the restrictions were permanent and that Ms. Bowen should not drive more than two and one-half hours per week.  Moore thereafter embarked on an effort to accommodate Ms. Bowen’s restrictions.  Ms. Bowen asserts that Moore did not accommodate her to the point of undue hardship and that specific elements of the accommodation plans constitute a reprisal contrary to the Act.

32.              Further to its argument that Ms. Bowen was setting up a reprisal complaint, Moore argues that the timing of the commission email is suspect.  Mr. Faber testified that he felt Moore was being set up.  He said that Moore’s commission practices had been in place for 13 or 14 years without any complaint by Ms. Bowen yet she made an internal complaint about the matter just one day before she provided Moore with what Mr. Faber characterized as the “bombshell” that she could only drive 2.5 hours per week, an 87.5% reduction in what she normally drove.  Mr. Faber testified that these restrictions were of concern because Moore’s competitive advantage is that it focusses on face to face customer service.  The commission email was sent at 3:29 p.m. on January 21, 2020 and Ms. Bowen provided her medical information at 7:25 a.m. on January 22, 2020.  Moore therefore asserts that she had the medical note from her doctor in her possession when she sent the commission email and that the Board should infer from her conduct that she was attempting to further her strategy to obtain a payment when she allegedly came to realize that the accommodation process was not going to work out the way that she wanted.  I note that at this point in time Moore had indicated its willingness to provide Ms. Bowen with accommodation of her medical limitations but it had yet to propose accommodation arrangements. 

33.              Ms. Bowen says the timing of the delivery of the medical information was just a coincidence, although she could not recall when she received the doctor’s note.  The date upon which the medical questionnaire was completed by the doctor is unknown.

34.              At the hearing, Moore questioned the legitimacy of Ms. Bowen’s medical restrictions as part of its theory that Ms. Bowen was trying to set Moore up for a payment.  Ms. Bowen testified that she could not reach out with her arms nor can she continually hold her arms in that position thereby affecting her ability to drive beyond the limit identified by her doctor.  According to the evidence before the Board Ms. Bowen continued to drive approximately 20 hours per week in December, and she continued to play 18 holes of golf two to three times each week, including over Christmas 2019, and attended Orange Theory high intensity training three times per week.  The fitness classes are 45 minutes in length and involve lifting weights up to 15 pounds to shoulder level for up to 15 to 20 minutes. 

35.              It was also asserted by Moore in furtherance of its theory that Ms. Bowen’s request for accommodation was a ruse to extract a payment, that Ms. Bowen was not complying with her driving restrictions.  Mr. Faber testified that on January 24, 2020 she put 36 liters of gas in her car on January 29, 2020 it was 59.2 liters and that on February 9, 2020 she put 62.9 liters of gas despite advising that she could only drive two and one-half hours per week.  He suggested that one could drive 500 to 600 kilometers on 60 liters of gas and that Ms. Bowen could not drive that distance within her driving restrictions.  In response, Ms. Bowen said that her husband often drove her to see customers.  Moore argues that this is not credible because until the hearing she never said that her husband drove her and at no time did she ever suggest in the context of discussing her accommodation requirements that her husband would be available to assist her.  Moore argues that the Board should take her testimony into consideration when weighing her credibility.  Ms. Bowen’s husband was not called to testify before the Board despite his presence at each day of the hearing

36.              By way of an email dated January 24, 2022, Ms. White advised Ms. Bowen that given her driving restrictions she should avoid driving for business related purposes in excess of the recommended weekly hours and that she would arrange a meeting in the next week.  Ms. White, Mr. Abbott and Ms. Bowen met to discuss the accommodation plan on January 29, 2020. 

37.              Ms. Bowen testified that the meeting constituted a reprisal because she asked Moore to comply with the Act. 

38.              Moore provided Ms. Bowen with a written accommodation plan dated January 29, 2020 (“initial plan”).   The initial plan provides that the proposed accommodations were being implemented on a trial basis and that those measures would be reviewed regularly to ensure compliance with her medical restrictions and the needs of the business.  Moore set out the proposed accommodations as follows:

39.              Ms. Bowen testified that the initial plan was upsetting to her and that she was still upset by it when she testified at the hearing almost two and one-half years later. She views it as an attempt to humiliate and intimidate her.  She asserted in her evidence that that Moore was “pissed off” because she was going to make a claim under the Act.  She said that when she presented the accommodation plan, Ms. White was “dictatorial” as in “this is the way it is going to be”.  In her testimony, Ms. Bowen described the entirety of the accommodation process as a one way street.

40.              Ms. Bowen specifically takes issue with two elements of the initial plan which she asserts constitute a reprisal because of her earlier attempts to seek compliance with the Act.  She set out those objections in an email dated January 30, 2020 to Ms. White and Mr. Abbott.  The first is the requirement that on the days that she was not seeing customers Ms. Bowen was to work from a desk in the customer service area within Moore’s offices (Monday to Friday, 8:00a.m. to 4:30p.m.).   Mr. Faber and Ms. White both testified that she was being asked to work from the office so that Moore could determine how best to utilize her time now that she was not travelling as she had before and so that it could monitor the accommodation plan and Ms. Bowen’s compliance with her driving restrictions.  Both Mr. Faber and Ms. White testified that the proposal that she work from the office was in keeping with Ms. Bowen’s doctor’s recommendation.  Ms. Bowen asserted that she had never been required to work out of the office and that being required to work in a high traffic, open area within Moore’s office was nothing more than an attempt to humiliate her. Moore had previously done away with specific desks for Account Manager opting instead for what is often referred to as a hotel system.  She said she felt like a school kid being told to sit in the corner and that Moore wanted to make an example of her. 

41.              The second element of the initial plan to which Ms. Bowen objected is the proposed cancellation of her gas card and car allowance effective January 31, 2020.  Ms. Bowen disagreed that she would not be required to travel significant distances to customer locations and therefore there was no reason to cancel what she later argued was part of her compensation.  Both Ms. White and Mr. Faber testified that in lieu of those things, Moore would continue to pay for business related travel albeit through the use of Uber, Go Train and Moore’s trucks to pick up samples and by way of reimbursement for kilometers driven.  Mr. Faber testified that he made the decision to take away Ms. Bowen’s gas card and car allowance and he did so solely in response to the limited amount of driving that Ms. Bowen would be able to do and bearing in mind that she would be compensated for her travel in other ways (Uber, Go Train, payment per kilometers driven etc.). 

42.              There was a further dispute between the parties about that part of the initial plan that provided that Ms. Bowen could not rely on her colleagues to pick up samples from customers.  Moore takes the position that the practice entails a quid pro quo in which Ms. Bowen could not participate because of her driving restrictions.   Ms. Bowen took the position with Moore it would not constitute undue hardship if there was a moderate increase to that practice.  Mr. Stocki was asked about the matter and he agreed that while there was such a practice amongst the Account Managers but that Ms. Bowen would not be able to reciprocate unless the customer was located close to the office so as to ensure that Ms. Bowen did not exceed her driving limitations.  Ms. Bowen did not specifically argue that the matter constitutes as reprisal.  I simply note that Moore offered to use couriers and its own trucks to pick up samples on Ms. Bowen’s behalf therefore it is difficult to conclude that this element of the initial plan constitutes a penalty.  I need not comment on the matter further

43.              In her January 30, 2020 email Ms. Bowen further alleges that Moore had failed to accommodate her medical restrictions to the point of undue hardship and that the initial  plan, and specifically the loss of her gas card, car allowance and requirement to work from the office, constituted a reprisal under the Code (an allegation which is not before the Board).  She further says she intends to file an application under the Code alleging reprisal and failure to accommodation and an application under the Act alleging reprisal and a failure to pay her 2018 performance and display bonuses.

44.              What followed from Ms. Bowen’s January 30, 2020 email is a series of correspondence in which Moore both (1) defends (in the manner already set out above) its decision to require Ms. Bowen to work from the office and to remove her gas card and car allowance and, (2) amends the initial plan acceding to at least some of Ms. Bowen’s complaints.  Notwithstanding any of the amendments to the initial plan (addressed later in this decision), in her correspondence Ms. Bowen continued to take the position that  the various amended accommodation plans were an attempt to punish her (for the reasons set out above) for her attempts to seek compliance with the Act.  She testified to that effect before the Board.

45.              In a letter dated February 3, 2020 in which Moore defends the initial plan, Ms. White refers to the commission email stating as follows: 

46.              Mr. Faber, Ms. White, Mr. Abbott and Stephen Moore met on February 4, 2020.  According to Mr. Faber the purpose of the meeting was to discuss what Ms. Bowen’s workday would look like given that she could not longer drive to customers in the manner she had done before.  He said she use to drive 20 hours and Moore now had to determine what she would do with that time and how Mr. Abbott would manage the accommodation plan.  He said there was no discussion at that meeting about her claim under the Act regarding the alleged unauthorized deductions or the display bonus.  There is no evidence to contradict that statement.

47.              By way of an email dated February 5, 2020, Ms. Bowen again sets out her objections to the initial plan.  In addition to the objections set out previously, she says that driving to the office would use up all the driving time she could otherwise use to visit clients, that working from home allowed her to control the temperature and humidity in her workspace, and that working in an open area in the office would be humiliating and upsetting.  She reiterates her position that the proposed accommodations, specifically the requirement that she report to the office, and the cancellation of her car allowance and gas card constitute a reprisal contrary to the Act and the Code.  Significantly (in the context of what is yet to come), she states in her letter that she is willing to agree to a reasonable reduction to her monthly car allowance, but that she should be allowed to keep the gas card like all of the other representatives (notwithstanding the restrictions to her driving).   She again gives notice that she intends to file a complaint alleging unauthorized deductions contrary to the Act. 

48.              Moore provided Ms. Bowen with a revised accommodation plan (“revised plan”) by way of a letter dated February 10, 2020.  Pursuant to that plan, Ms. Bowen would still be required to work out of Moore’s offices because, according to Moore she did not previously work from home and because she was no longer on the road 50% of the time.  She was given the option of working in a semi-private office, or a private office that with a door that backed onto the production area.  Ms. White testified, in keeping with certain comments in the February 10, 2020 letter, that the provision of an office would permit Ms. Bowen to use a heating pad, humidifier, and TENS machine at the office and that Moore would look into providing her with an ergonomic chair. Ms. White testified these things were not part of the limitations set out in the information from Ms. Bowen’s doctor but that Moore was prepared to provide them in order to resolve the accommodation plan.  The revised plan notes that unless Ms. Bowen returned her gas card by February 11, 2020 it would be cancelled.  Ms. White and Mr. Faber each testified, again, that the cancellation of the gas card and car allowance was a direct response to the limited amount of driving that Ms. Bowen could do and the new costs that Moore would incur in relation to her travel. 

49.              The February 10, 2020 letter further asks Ms. Bowen to provide a plan by which she would service her customers given her driving restrictions.  Mr. Faber testified that Ms. Bowen’s sales had fallen to 77% of her budget in 2019 and January 2020 and that Moore was concerned about how she would meet her client’s needs given her driving restrictions.  According to Ms. White, Ms. Bowen had been previously asked for a plan at a meeting on February 5, 2020 but that she provided no clarity on the issue other than to state that matters would be “status quo”.

50.              As already noted, Ms. White reiterates in her February 10, 2020 letter Ms. Bowen’s right to file complaints under the Act and the Code and states that Moore views those complaints to be without merit.   The letter then goes on to provide that Ms. Bowen was expected to cooperate and comply with the trial accommodation plan communicated to her and that the plan may be adjusted overtime.  The letter ends with the following statement:

51.              Mr. Faber denied that this statement was a threat, rather it was a reaction to the fact that the parties were two months into trying to arrange an accommodation plan and Moore merely wanted to remind her of her requirement to participate in the process. 

52.              Ms. Bowen was asked to attend a meeting with Ms. White on February 17, 2020 in order to discuss the revised plan and how she was going to service her clients, information which she had yet to provide. 

53.              By way of an email dated February 17, 2020, Ms. Bowen said that she was not going to attend the meeting because it fell on Family Day and that Moore was in violation of the Act by requiring her to work that day in the absence of her consent.  She testified that the requirement to meet on that day was a penalty.

54.              Ms. Bowen acknowledged in cross examination that she had always worked Family Day and that she had received a February 11, 2008 memorandum setting out Moore’s policy regarding Family Day.  In short, the policy states that Family Day is a workday and that Moore provides its employees with a greater right or benefit than that provided by the Act because it provides 10 holidays rather than the nine holidays required by the statute.  The policy further notes the following said to be taken from a statement from the Ministry of Labour:

55.              In a further email dated February 17, 2020 Ms. Bowen makes further allegations of reprisal (pursuant to the Act, the Code and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”)), namely that her gas card was cut off and her January expense cheque was withheld.  (There was no evidence before the Board that Ms. Bowen sought to enforce her rights under the OHSA such as to found an allegation of reprisal.)  In her evidence, Ms. Bowen said she received her expense cheque on Tuesday February 18, 2020, but that she usually got them on the 15^th of each month.  She said she asked other sales representatives, one of whom was Mr. Stocki, as well as her Customer Service Representative to check her cubby and that she was told that the cheque was not there.  Mr. Stocki was not asked about the matter by Ms. Bowen, and the other individuals were not called to testify.  Ms. Bowen said she was given no explanation for the delay in the provision of her expense cheque. 

56.              Mr. Faber testified that the gas card was cut off because she was only driving two and one-half hours per week and because Ms. Bowen had been asked twice to return it and warned that it would be cut off if she did not.  He further testified that Ms. Bowen’s expense cheque was prepared on Wednesday February 12, 2020 and that it was placed in her cubby that same day.  Moore argues that Ms. Bowen provided no credible evidence to support her allegation that the expense cheque was withheld.  It further asserts that even if the expense cheque was late, it was not a reprisal because she was paid, and that “dying on this hill” undermines Ms. Bowen’s case.

57.              Mr. Faber said he was suspicious of the timing of Ms. Bowen’s complaint about Family Day and that he felt that Moore was being set up for a reprisal complaint given the ongoing discussions regarding the as yet unresolved accommodation plan. 

58.              Ms. Bowen continued to object to the revised plan for generally same reasons she objected to the initial plan. She continued to object to the cancellation of her gas card and car allowance.  She asserted that the semi-private office was located near Mr. Faber and she objected to having her work “monitored” and, although she never tried it, she said the private office would be too noisy.  She objected to the notion that she could use her TENS machine in the office on the basis that it would be like advertising her use of the device.  She continued to assert that she could work from home. 

59.              On February 21 2020, Ms. Bowen sent Moore a draft complaint to the MOL alleging improper deductions and failure to pay her bonus as well as a draft complaint under the Code.  

60.              Mr. Faber testified that he did not view the draft complaint as a threat or an attempt to damage Moore’s business noting that Ms. Bowen had the right to file a complaint under the Act but that he did not think the complaints had any merit.  Ms. White testified that the draft complaint did not influence any of the decisions regarding the accommodation plan.

61.              By way of an email dated February 27, 2020 from Ms. Bowen’s counsel, Richard Nixon, she advised that she intended to amend her complaint under the Act to assert that Moore had violated the Act by requiring her to work on the preceding ten Family Day holidays and to add further allegations to her complaint under the Code.  She asserted that the respective complaints under the Code and the Act would be filed on March 6, 2020 unless her “claims are resolved to her complete satisfaction”.   The email  also asserts that Ms. Bowen reserves the right to commence an action against Moore, Peter Moore, the owner and founder of the company, Stephen Moore and Pamela White asserting constructive dismissal caused by the “poisoned work environment in which Ms. Bowen has been forced to work for the past several years”.  The email provides no detail of the alleged poisoned work environment. 

62.              March 6, 2020 came and went without Ms. Bowen having filed a complaint with either the MOL or the Human Rights Tribunal of Ontario (“HRTO”). 

63.              On March 10, 2020 Ms. Bowen sent an email to Mr. Faber, Peter Moore, Stephen Moore, Jeff Abbott and Pamela White asserting that Moore was purposefully mislabelling eight boxes that it was selling to Jones Packaging (“Jones”) and “several of Moore’s customers”.  Specifically, she asserted that the Edge Crush Test (“ECT”) (which measures the edge wise crushable strength of a corrugated box – how much weight the box can take from top to bottom when stacked)  on the Class Stamp affixed to the bottom of the box sold to Jones and another customer, Waterloo Brewing, was incorrect.  She did not identify any other customers.  She gave an example based on one sample order where Jones specified an ECT of 40 (the number of pounds per linear edge), but she alleged that the box was actually produced at ECT 32 “per Jeff (Abbott)”.  In her email she asserted that Moore shipped over 156,000 mislabelled boxes to Jones in 2019, and that it purposefully down graded the ECT on certain boxes sold to Waterloo Brewing. She asserts that the inaccurate labelling was a violation of the Competition Act and the Consumer Packaging and Labelling Act.  She then goes on to say, “I caution Moore not to discipline, threaten or retaliate against me for drawing to Moore’s attention the inaccurate labelling of the Edge Crush Test on the Class Stamp placed by Moore on the bottom of the corrugate boxes manufactured for many of Moore’s customers”.   She then cites section 45.1(1) of the Criminal Code[1] (which prohibits reprisals with the intent to dissuade an employee from providing information about an employer’s conduct to a regulatory authority – in effect, a whistleblower provision) and states that Moore, in order to protect its reputation and to avoid litigation and a government investigation or charges, should stop its alleged practice and voluntarily disclose the inaccurate labelling to its affected customers. 

64.              According to Mr. Faber, Jones is one of Moore’s larger clients with revenue of more than a million dollars per year.  He said he felt at the time that perhaps Moore was being set up for more allegations of reprisal given the timing of her allegations about the boxes sold to Jones in the context of the ongoing challenges in defining an accommodation plan and because Ms. Bowen had been collecting commissions on these boxes for many years.  He said he was surprised at the allegation because he was unaware of any mislabelled boxes.

65.              For ease of reference I will refer matter to this as the “box issue”.  I will have more to say about this issue later in this decision.

66.              Ms. Bowen was advised of the testing and compliance of the boxes sold to Waterloo Brewing by way of an email from another Account Manager, Julie Faber.  She disputes the truth of that email alleging that Ms. Faber had made comments to the effect that the boxes had been downgraded. 

67.              On March 11, 2020, Moore delivered a further revised accommodation plan (“further revised plan”).  Moore did not address Ms. Bowen’s March 10, 2020 email regarding the box issue other than to acknowledge its receipt.  The further revised plan allowed Ms. Bowen to work from home so she could maximize her customer contact without using up her driving time commuting to work, an issue that Ms. Bowen had raised earlier, provided that she remained willing to fulfill the “essential duties” of her role which included meeting customers in person and in a manner that is no less than she had done prior to her accommodation request.  In response to Ms. Bowen’s objections pertaining to her gas card and car allowance, Moore also proposed a pro-rated $140.00 monthly car allowance to cover both business and personal driving related expenses.  According to Mr. Faber this represents a pro-rated amount of her original car allowance ($600 per month) based on the two and one-half hours per week she could drive (a reduction of 87.5%).  As already noted, Ms. Bowen earlier proposed a reduction to her car allowance to reflect the fact that she would be driving less (although she never specified an amount).  Mr. Faber again testified that she would be compensated in other ways, namely by Moore paying for Go Train and Uber expenses and reimbursing her for kilometers driven, and by using its trucks to pick up and drop off samples.  

68.              Mr. Stocki testified that following the onset of the COVID-19 pandemic Moore continued to provide its Account Managers (with the exception of Ms. Bowen) with a car allowance and a gas card despite the fact that the Account Managers were no longer travelling to client sites.   He testified that after March 2020 his travel fell from between 80% and 90%, but eventually admitted on cross examination that his driving in March 2020 fell by only 55%, as compared to the 87.5% reduction in Ms. Bowen’s ability to drive. The evidence further established that Mr. Stocki used more gas in August 2020 then before the pandemic started.  Moore was declared an essential business and that it continued to operate during the pandemic closures.  Mr. Stocki agreed in cross examination that it made sense for the other Account Managers to keep their gas card and car allowance during this period since they were still required to see customers. 

69.              The further revised plan requires Ms. Bowen to meet with Mr. Abbott at Moore’s offices at least once per week.  Mr. Faber and Ms. White both testified that the purpose of the meetings was to review the accommodation plan and to ensure that Moore’s business needs were being met given that Ms. Bowen had not provided the requested plan as to how she would service her customers.  To the extent that travel to the office for these weekly meetings impacted Ms. Bowen’s driving time, Moore offered to pay for any alternate travel arrangements.  Mr. Faber acknowledged in cross examination that Ms. Bowen was the only Account Manager required to attend weekly meetings but he said that was because Ms. Bowen was the only one to have a two and one-half hour driving restriction. 

70.              I note here that the further revised plan responded to each of Ms. Bowen’s objections (although not in the way she would have preferred) with the exception that her colleagues would assist in picking up and dropping off samples and the provision of a gas card.

71.              Ms. Bowen responded to the further revised accommodation plan on  March 23, 2020 with generally the same concerns and criticisms she had expressed about the earlier iterations of the plan.  She asserts that Moore has unilaterally altered the terms and conditions of her employment while she continued to perform her job within her medical restrictions.  She notes that as a result of the COVID-19 pandemic (which the Government of Ontario declared to be an emergency on March 17, 2020) alternate means of communicating with clients had become the norm and that many of Moore’s customers’ offices were closed.  She rejected the proposed car allowance as a change to the terms and conditions of her employment (despite having made a similar proposal earlier) and stated that she saw no legitimate reason why she should not continue to have a gas card like all of Moore’s other Account Managers.  She again asserted that the changes to her car allowance and gas card constituted a reprisal.  She also rejected the requirement that she meet with Mr. Abbott on a weekly basis asserting that it would use up time she could use to meet with customers and instead proposed that she would review any customer matters with Mr. Abbott on a monthly basis in a manner that did not require in-person attendance given the COVID-19 pandemic.  

72.              In cross examination, Mr. Faber said he viewed these allegations as predictable and a distraction from Moore’s attempts to accommodate Ms. Bowen’s medical restrictions. He said these ongoing objections were an indication of Ms. Bowen’s failure to cooperate in those efforts.  Ms. White testified that the only changes to Ms. Bowen’s employment were as a result of the required accommodations.

73.              On March 23, 2020 Ms. Bowen sent a further letter to Mr. Faber, Peter Moore, Stephen Moore and Ms. White attaching a draft letter she said she intended to send to the President of Jones.  That letter asserts that Moore had been placing an ECT 44 stamp on each of the boxes manufactured for Moore, but that those boxes actually had an ECT of 40, which (in her view) constituted a violation of the Competition Act and the Consumer Packaging and Labelling Act.  In that letter she asserts that Moore has deliberately deceived Jones and she sets out the recommendations she made to Moore in her earlier correspondence.  The draft letter, had it been sent, would have been copied to the Commissioner of the Competition Bureau, the Independent Packaging Association and its President, the Chairman of the Canadian Corrugated and Container Board Association, Peter Moore, Jeff Abbott and 11 of Moore’s Account Managers.  Ms. Bowen testified that when she drafted the letter to Jones she believed the content to be true.

74.              Mr. Faber testified that he thought Ms. Bowen was going to copy all of the various individuals and organizations in order to apply more “pressure” to Moore on the basis that Moore would not want Jones or its Account Managers to know about the issue. 

75.              Moore responded to the draft letter to Jones by way of a letter dated March 25, 2020 in relevant part as follows:

76.              The March 25, 2020 letter provides that the accommodation plan will remain as presented in the further revised plan, with the exception that due to the onsetting COVID-19 pandemic she would not be required to meet customers in person and the weekly meetings  with Mr. Abbott would take place via video conferencing, beginning with a meeting on March 30, 2020.  Mr. Faber testified that Moore was trying separate her right to file a complaint with the relevant regulatory authority and her conduct in possibly damaging the business by contacting clients, conduct which Mr. Faber considered would merit termination for just cause.

77.              On March 27, 2020, through her legal counsel, Ms. Bowen sent a “without prejudice” email to Moore’s then legal counsel addressing, among other things, Moore’s March 25, 2020 letter.  As the email from Ms. Bowen’s legal counsel is integral to why Moore said it terminated Ms. Bowen’s employment, it is useful to set out that email in its entirety:

78.              Despite vigorous cross examination, Ms. Bowen testified that the March 27, 2020 email was not a threat rather she just wanted Moore to talk to her about the box issue.  She did however acknowledge that the email could be perceived as an attempt to amp up the pressure and the stated intention to send letters to Moore’s clients was the proverbial straw that broke the camel’s back for Moore. 

79.              Mr. Faber described the March 27, 2020 email as akin to a ransom – it could all go away, including her threats to contact the top 20 of Moore’s customers (approximately 40% of Moore’s business) - for $400,000.  He testified that in his view Ms. Bowen was taunting Moore to fire her, and threatening legal action if it did.  Of the items set out in the email, Mr. Faber testified he only identified the assertion that Ms. Bowen would write to clients and go to the media as a threat.  He viewed these things as an attempt to “sabotage” Moore’s business and put hundreds of people out of work.

80.              Despite the draft letter to Jones and the March 27, 2020 email, Ms. Bowen met with Ms. White and Mr. Abbott on March 30, 2020 as part of the proposed weekly meetings.  Ms. Bowen posed several questions, each of which relate to the issues about the accommodation plans she raised earlier:  when her car allowance and gas card would be reinstated given that all Account Managers have fixed costs associate with owning or renting a vehicle and a gas card to pay for fuel expenses, when she and the other Account Managers would be paid wages owing under the Act (related to certain deductions made from commissions payable), why she was the only Account Manager required to attend the March 30, 2020 meeting and when Moore was going to Jones that the Edge Crush Test label on the cartons that Moore makes for it are inaccurate.  These same issues were set out in an email from Ms. Bowen to Ms. White and Mr. Abbott dated March 31, 2020.  What she did not do at that meeting, or at any time, was provide any information about how she was going to service her clients given her driving limitations. 

81.              Mr. Faber testified that Moore did not respond to Ms. Bowen’s inquiries because it had already addressed each of these matters with Ms. Bowen. 

82.              Moore responded to the March 27 and 29, 2020 emails (through its then legal counsel) on April 3, 2020.  The April 3, 2020 letter notes that Moore has obtained assurances through its industry council that it is in compliance with its legal obligations and that it had already addressed the labelling issue directly with Jones.  The letter provides as follows:

83.              The Board heard quite a bit of evidence about the boxes Moore sold to Jones and its other customers.  It goes without saying that whether the ECT stamps on any of the boxes produced by Moore were incorrect is not something that the Board has either the jurisdiction or the expertise to determine.   In summary, Moore asserts that further to its testing, other than two boxes it sold to Jones (which I will address later in this decision)  the ECT stamp on each of the boxes it sold were correct considering the strength of the corrugated cardboard and the glue and labels applied to the boxes.  When confronted with the Moore’s assertion about the strength of its boxes, Ms. Bowen said she was unaware that certain Moore’s boxes actually tested at a higher ECT number than indicated on the ECT stamp affixed to the boxes.  She acknowledged that she did not undertake any independent tests of any of the boxes Moore sold to Jones or any other customer.  She agreed that that she never had any dealings with 18 of the 20 customers on the list of customers attached to the March 27, 2020 email rom her counsel (and therefore could not have any knowledge of the boxes sold to those customers).  In fact, the only specific customers she identified was Jones and Waterloo Brewery.  She also acknowledged that she had no dealings with any of the various Chief Executive Officers and Vice Presidents o the 20 customers to whom she said she was going to send letters.  She suggested, without any evidence at all, that Moore may have faked its tests.  Similarly, in her testimony Ms. Hewlett said she believed that the ECT stamp on some of the boxes were incorrect and/or that it was changed to meet the customer’s production requirements, but she agreed that she could only give hypothetical examples (44 ECT changed to 40 ECT), did not test the boxes and did not know the grade of paper used to produce a specific ECT (32 Extra Strength) grade, or even the strength of a box bearing that ECT stamp.  Mr. Stocki testified that the ECT stamps were not always accurate.  He gave an example where he said that a customer requested a box with a 71 ECT and that it was run at 61 “BC” (although what that is was never clearly explained to the Board).  However, in cross examination he agreed that he had no evidence to counter Mr. Abbott’s testimony that the recipe for 71 BC tests out at 61 ECT. 

84.              Ms. Bowen acknowledged that she had been accepting commissions on the subject Jones boxes for many years.  She testified that Jones was one of her biggest clients and that she just shelved the issue even though she knew it was wrong but that she came to be concerned about her own personal liability and that of her co-workers and therefore felt it was necessary to come clean with Jones. 

85.              Moore argues that Ms. Bowen raised the issue of the boxes and threatened to send the draft letter to Jones as part of her effort to extract a payment from Moore.

86.              It is relevant that on April 6, 2020, Mr. Faber resolved matters with Jones by giving them a letter of credit, dated March 31, 2020 for $22,600.00.   According to Mr. Faber, Jones was already aware that the boxes were being produced at a weight not reflected in the class stamp and ultimately agreed to simply change the stamp rather than the board grade used in the box.  In essence, the box remained the same because it was working for Jones, but there was a price discrepancy between what Moore charged Jones and the actual price of the boxes it delivered to it.  Mr. Faber said he did not expressly tell Ms. Bowen about the settlement because she had already been informed that Moore had addressed the box issue directly with Jones.

87.              Mr. Faber sent a further email to Ms. Bowen on April 6, 2020 in response to her March 29, 2020 email.  It asks that any correspondence regarding any “threats” of litigation to Moore’s legal counsel, then addresses Ms. Bowen’s accommodation plan.  In his email Mr. Faber says that Ms. Bowen will be required to meet with customers in person in the manner set out in the accommodation plan once the COVID-19 restrictions allow and further states that if she does not agree with the plan, she can file a complaint with the HRTO.  The email concludes with a warning that if she follows through with any of her “threats to disparage the company to Jones Packaging and any other clients or employees or to publicly defame the company on social media” her employment would be immediately terminated for cause.

88.              In keeping with the schedule set out in the March 27, 2020 email from her legal counsel, Ms. Bowen couriered a  complaint to the MOL on April 3, 2020.  She also signed an application with the Human Rights Tribunal of Ontario on April 9, 2020.

89.              Mr. Faber testified that because Ms. Bowen had already carried out the first part of what he called the “ransom schedule” (set out in the March 27, 2020 email) he wrote to her on April 16, 2020 to again advise that Moore was fully compliant with its legal obligations regarding the ECT stamps on its boxes.  According to Mr. Faber he did so because according to the March 27, 2020 schedule Ms. Bowen was to send the “threatened” letter to Jones on April 17, 2020.   Mr. Faber’s letter further that Ms. Bowen’s employment would be terminated for just cause if she sends the draft letter to Jones or any other client or otherwise disparages Moore.  The letter further states that such conduct would violate her confidentiality agreement. 

90.              Ms. Bowen’s counsel responded on April 17, 2020 with a draft complaint to the Canadian Competition Bureau stating that it would be submitted if Moore did not respond to Ms. Bowen’s offer to settle (for $400,000.00) by 6:00p.m. that day.  Ms. Bowen has the right to report the box issue to the Canadian Competition Bureau.  Even if her employment was terminated because she threatened to file such a complaint is beyond the jurisdiction of this Board.

91.            Ms. Bowen’s counsel sent a further email on April 17, 2022, stating:

92.              Mr. Faber testified that he perceived the second of the April 17, 2020 emails to be a “ramping up of the pressure” for Moore to pay Ms. Bowen $400,000.00 to make everything go away.  As addressed later in this decision, it is this email that Mr. Faber testified caused him to decide to terminate Ms. Bowen’s employment.

93.              Counsel for Moore responded on April 17, 2020 asking for time in which to consider the April 17, 2020 correspondence from Ms. Bowen’s counsel.  By way of an email dated April 20, 2020 Ms. Bowen agreed to hold off sending her complaint to the Canadian Competition Bureau until April 22, 2020 pending a response from Moore.  That email  goes on to state that unless all of Ms. Bowen’s issues are resolved to her complete satisfaction by April 22, 2020, Ms. Bowen would provide copies of her complaint to all of Moore’s sales representatives on Monday April 27, 2020.  Ms. Bowen argues that the proposed distribution of her complaint to her colleagues is protected activity under the Act.

94.              According to Mr. Faber, after he received the April 17, 2020 email from Ms. Bowen’s legal counsel stating that it was “only going to get worse” it became clear to him that the employment relationship with Ms. Bowen was unsalvageable.   He testified that it was obvious to him that she was not going to comply with the accommodation plan and that she would use confidential data to contact customers and damage Moore’s business unless she got paid.  According to Mr. Faber, the crux of his concern was that Ms. Bowen, having completed the first items in accordance with the schedule set out in the March 27, 2020 email, would send the “threatened” letter to Jones and its other clients in accordance with the next items on that schedule.   He  noted in his evidence that the draft complaint to the Canadian Competition Bureau included an allegation that Moore had ignored her concerns about the boxes sold to Jones.  He said that was untrue because he had already informed her that the issue had been resolved.  He testified that in his mind the company was trying to manage its business in the face of the COVID-19 restrictions and Ms. Bowen was trying to put a lot of employees out of work.  For all of these reasons, he made the decision to terminate Ms. Bowen’s employment. His specifically testified that he made that decision after receiving correspondence from counsel on April 17, 2020 stating, inter alia, that it would only get worse for Moore but that it took him a few days to prepare the letter and consult with counsel.  He said that the decision to terminate was unrelated to her complaints under the Act.

95.              Ms. Bowen’s employment was terminated for alleged just cause on April 22, 2020 after Mr. Faber consulted with legal counsel.  The termination letter provides in relevant part as follows:

96.              Ms. Bowen testified that she learned of the termination of her employment from a colleague and that she later received a call from a client advising that Moore had sent an email notifying it of Ms. Bowen’s departure from the company.  She then discovered that her work email had been disabled, checked her personal email and discovered the termination letter.  She said she was “inconsolable”, “distraught”, “in disbelief”, “shock”, and “sucker punched” by the termination of her employment. 

97.              Mr. Faber then sent an email (dated April 22, 2020) to staff stating as follows:

98.              Mr. Faber advised Peter Moore of the termination of Ms. Bowen’s employment by way of an email dated April 22, 2020.  There is no content in the email other than the subject line “Lesa Bowen is no longer employed”.  Mr. Moore responded “I know the sun is not over the yard arm yet but I am having a demon rum and coke now anyway”.   Ms. Bowen caste that email as evidence of Peter Moore’s support for the termination because, among other things, she had filed a complaint under the Act.  Mr. Faber said he interpreted it as relief given Ms. Bowen’s threats to contact customers and jeopardize the business.  Peter Moore did not testify before the Board.

99.              Mr. Faber also called the other Account Managers and advised them of the termination of Ms. Bowen’s employment.  He said he told them that the decision came after months of threats, although he said he was not specific about the nature of those threats, and that she had specifically taken issue with 20 of Moore’s clients, although he said he did not identify the customers.  He  directed those employees to report to him should Ms. Bowen reach out to any of them.  He testified that he told people not to speak to Ms. Bowen because she was suing the company.  Moore argues that Mr. Faber acted reasonably in light of all of the ongoing and threatened litigation and that its actions cannot be interpreted as a reprisal. 

100.         Ms. Bowen says that by its actions telling her former colleagues not to speak with her Moore ostracized her and that she lost friends as a result.  She asserted that this was a further reprisal because she exercised her rights under the Act.

101.         In the course of the evidence I queried whether such an allegation could be said to make out a prima facie breach of the Act.  However, the parties proceeded to call evidence about the matter.  Ultimately, Ms. Bowen agreed in cross examination that the direction to staff not to talk to her was reasonable given the civil claim that she had brought against Moore.  I need not address the matter further. 

102.         Mr. Faber was vigorously questioned about the various reasons for the termination of Ms. Bowen’s employment set out in the termination letter.  Mr. Faber testified in cross examination that he did not consider Ms. Bowen’s claims under the Act to be an attempt to extort Moore or to harm the company or to be a breach of her duty of good faith and fidelity or her intention not to be bound by her employment contract.  However, he asserted that in his view Ms. Bowen threatened charges under the Criminal Code by way of her March 10, 27 and 29, 2020 emails and that the draft letters she said she would send to clients were incendiary because they contained false claims about the company including that Moore attempted to deliberately deceive clients and that it ignored her concerns.  He asserted that the draft complaint to the Canadian Competition Bureau was unmerited because she claims that Moore deceived its customers (plural) when in fact there was only an issue with two boxes sold to a single customer (Jones) and because she had already been advised that matter had been addressed with Jones directly.  He also said that he did not believe that any statement of claim would be factual therefore he was concerned about her sending it to third parties.  His biggest concern was that Ms. Bowen was going to send the proposed letters to Moore’s biggest clients and he testified that was the main reason Moore terminated Ms. Bowen’s employment.

103.         Ms. Bowen denies that she was trying to extort money from Moore, noting that she was never charged with a crime.   She was asked repeatedly in cross examination whether she was attempting to push for a large payout from Moore.  Counsel pointed to Mr. Nixon’s email of March 27, 2020, noting that at the time of the termination of her employment she had already carried out the first two parts of her action plan, and Mr. Nixon’s email of April 17, 2020 in which he asserted that things would get much worse.  Ms. Bowen repeatedly refused to answer the question until she was directed by the Board to do so.  She agreed that the letters would, if sent, cause harm to Moore but that she believed that it was a normal part of the negotiation process (between an employee and an employer over a severance arrangement). 

104.         In respect to the letters to Moore’s clients, Ms. Bowen asserted that she never intended to send the letters to Moore’s clients and that she only wanted Moore to talk to her. She agreed that she never told Moore that she would not make good on that part of the March 27, 2020 email wherein it is stated she would send a letter to Jones and its other customers.  She continued to assert that she was concerned about her own liability given what she perceived was the mislabelling of boxes. 

105.         When asked  by the Board why, if she was concerned about her personal liability, she would potentially provoke that same liability by sending the proposed letters to Moore’s clients, she said that she thought if she voluntarily came clean all would be well. When specifically asked why, if she was concerned about her liability she was prepared forego any communication with the various clients in exchange for a payment, Ms. Bowen simply agreed that in exchange for a payment she would not bring up the matter again.  Moore argues that this makes it clear that everything was always about the money.  In final argument, Ms. Bowen asserted that in the March 27, 2020 email setting out the settlement offer there was no suggestion that the deal would include a confidentiality clause or a non-disparagement clause (although it was not made clear whether she was suggesting that she would communicate the box issue to Moore’s clients in the face of a settlement agreement that did not include such restrictions). 

106.         Ms. Bowen never sent any of the proposed letters to any of Moore’s clients.  However, she did file a complaint with the Canadian Competition Bureau on May 11, 2020. The response from the Canadian Competition Bureau dated April 15, 2020 provides that the commercial use boxes Moore produces are exempt from the Consumer Packaging and Labelling Act.  According to Mr. Faber, he made his own inquiries with the Canadian Competition Bureau.  Moore has heard nothing more from the Canadian Competition Bureau since March 2021.

107.         I will set out the legal arguments in brief.  The parties’ respective positions on the facts and allegations are set out earlier in this decision.  

108.         Moore argues that this application is about a “disgruntled” employee who, after failing to get a personalized retirement package, pivoted to a different “plan”.  According to Moore, that plan entailed asking for an accommodation for a medical condition which she apparently had for the prior 18 months but nonetheless was able to continue to drive 50% of the time and which would severely limit her ability, as a travelling salesperson, to visit her customers.  Moore challenges the legitimacy of Ms. Bowen’s medical restrictions given her ongoing activities (because she continue to golf, attend Orange Theory, and continued driving outside of her stated limitations) and argues that when she still did not get what she wanted she then engaged in what it calls “increasingly hostile and extortionate conduct” to extract a $400,000.00 payment from Moore, including by threating to send false letters to the most senior executives of its top 20 customers, letters which Moore notes even Ms. Bowen admitted would damage the company.  It says that the box issue, and the subsequent threat to send letters to Moore’s largest clients was not done in good faith as Ms. Bowen asserts, but rather further to her effort to get a severance package.  It says it is significant that Ms. Bowen said she was worried about her own liability but nonetheless agreed that she would walk away from the matter if she got the payment she was looking for.   Moore asserts that Ms. Bowen’s employment was terminated before she could carry out that threat and not for any reason related to her complaints under the Act.

109.         Moore acknowledged Ms. Bowen’s right to file complaints under the Act, but it argued that those complaints should be viewed through the lens of someone who was prepared to do everything she could, including threatening Moore’s business, to get a payment.  It further asserts that the timing of her complaints is suspect; she was aware of the issues about which she complained for many years and choose only to complain only after she did not get a retirement package and the accommodation plan was not going the way she wanted.

110.         Moore argues that Ms. Bowen’s assertion that she was the subject of reprisal as a result of her 1997 complaint is not credible given that Moore rehired her after it paid her claim and she continued to work without issue until 2019.  It further argues that the 1997 complaint is simply too remote for there to be a causal connection to any allegation of reprisal.

111.         In respect to the internal complaint about the 2018 bonus and the requirement to work Family Day, Moore says it acknowledged the complaints and her right to make them while at the same time advising that it did not believe that there was any merit to the complaints and that it would defend against them, something which Moore says was within its right to do.

112.         Moore argues that the various iterations of the accommodation plans were reasonable and contemplated both Ms. Bowen’s medical limitations, the corresponding changes to the essential duties of her position and the needs of the business.  It asserts that the proposed changes to her car allowance and the cancellation of her gas card were solely because she would not be driving in the same way she had previously, and because Moore would be paying for her transportation through other means.  It says that the requirement for her to work out of the office was in keeping with her own doctor’s recommendation and, along with the proposed weekly meetings, would allow Moore to monitor the accommodation plan and Ms. Bowen’s compliance with her driving restrictions and permit Moore to find ways to make her workday productive given that she would no longer be on the road.  In an effort to meet her concerns, Moore notes that it offered her various workspaces and ultimately conceded to allow her to work from home.  Moore argues that its flexibility (initial plan, revised plan, further revised plan) in meeting her concerns demonstrates that the accommodation process was not a reprisal.  In short, Moore argues it would not have been flexible if it wanted to punish Ms. Bowen with the accommodation plan. 

113.         According to Moore, the trigger to its decision to terminate Ms. Bowen’s employment was the April 17, 2020 email in which it is stated that things would only get worse if her settlement demands were not met.  The thrust of its argument is that the decision to terminate Ms. Bowen’s employment was not made because she sought the enforcement of the Act or filed a complaint with the MOL on April 3, 2020, or even because on April 17, 2020 she threatened to provide a copy of the complaint to all of Moore’s sales representatives if she did not get a satisfactory settlement, but because she had made good on the first part of the plan set out in the March 27, 2020 email and the next step on that schedule was to send an “inaccurate” letter about the box issue to Jones and its top customers thereafter.  In the face of the email stating that things would only get worse, Moore asserts it had no option but to terminate Ms. Bowen’s employment because it could not take the risk that she would make good on her threat to send the letters to its customers.  It submits that the termination of Ms. Bowen’s employment was a legitimate response to a series of threats and actions taken to harm Moore’s reputation unless all of her claims were resolved to her complete satisfaction.

114.         Moore did not present the Board with any caselaw.

115.         Ms. Bowen disputes the assertion that she made claims under the Act in bad faith but that in any event the motive for making such a claim is irrelevant because section 74 of the Act protects the right of employees to exercise their statutory rights whether or not the underlying claim has merit.  She argues that it matters only that she sought compliance and enforcement with the Act as set out in subsections 50(1)(a)(i)(ii)(iii) and (iv) and not the manner in which she sought that enforcement.  The applicant relies on the Board’s decision in Lozza v Jason A. Tereszko o/a Northern Nerds, 2020 CanLII 62081 (OLRB) (“Lozza”).  

116.         She further argues that any delay in asserting her rights under the Act as it relates to either commission deductions, payment of the 2018 sales bonus or Family Day is not relevant (provided that she is within the limitation period set out under the Act).  She argues that contrary to Moore’s position, there is nothing “suspicious” about wanting to enforce her rights under the Act.  

117.         Ms. Bowen submits, correctly, that the Board need only find that one of the reasons that Moore acted in the manner that it did was because she exercised her rights under the Act, see; Ellison v. National Fast Freight Inc., 2006 CanLII 21209 (ON LRB) (“Fast Freight”).

118.         She argues that Moore penalized her for her attempts to seek enforcement of the Act because it took away rights and entitlements of her employment under the guise of an accommodation.  She acknowledged that in the context of an accommodation the terms and conditions of her employment would change by necessity, but that any such changes must be reasonable and reflect her accommodation requirements.  She argues that Moore imposed unreasonable changes to the terms and conditions of her employment which had no logical connection to her medical limitations and therefore the accommodation plans constitutes a reprisal.  In brief, she argues that there was no basis to require her to work from the office when she had worked from home for many years, and that her car allowance and gas card were part of her income and that she would still have expenses related to her vehicle.  She expressly asserted in argument that Moore engaged in a reprisal when it cut off her gas card even though the gas card would look after itself (from Moore’s point of view) because she was driving less.  She argues that the nexus is made out because Mr. Faber testified that Moore considered how Ms. Bowen’s complaint under the Act was going to impact the accommodation process. 

119.         Ms. Bowen argued that the termination of her employment was, at least in part, because she asked Moore to comply with the Act and filed a complaint with the MOL.  She asserted that the April 20, 2020 email was the final trigger for the termination of her employment on April 22, 2020.  In that email Ms. Bowen says she will send a copy of her MOL complaint to her fellow employees, activity which she argues is protected under the Act, see; Fast Freight, supra.  She argues that her complaint about the commission deductions was worth hundreds of thousands of dollars to Moore, and that if all of Moore’s employees exercised their right not to work on Family Day it would be a “big issue” for Moore.  She argues that the proof of the foregoing lies in Mr. Faber’s evidence wherein he said he was “frustrated” when he received the Family Day email and that he thought it was suspicious and a distraction from the accommodation process.

120.         According to Ms. Bowen, Moore had no basis upon which to terminate her employment for cause; she merely exercised her legal rights (to file various legal proceedings) and in the end never sent any of the letters to Moore’s customers.  It therefore says the termination of her employment was premature.  It cites Unifor Local 333 v. Moore Packaging Corporation, 2021 CanLII 117560 (ON LA), an arbitration decision in which it was determined the termination of the greivor’s employment for her frustration or innocent incapacity for her inability to wear a face mask was premature because the accommodation process had not yet played itself out.   Ms. Bowen argues that there was no reason to terminate her employment for cause, therefore the Board must conclude that her employment was terminated as an act of reprisal.  She argues that (in response to the six points set out in the termination letter):

121.         Ms. Bowen argues that further proof of Moore’s reprisal against her lies in Mr. Faber’s testimony about his telephone calls to employees following the termination of Ms. Bowen’s employment advising that Ms. Bowen had engaged in threats against the company, which, in his testimony, Mr. Faber acknowledged included threats to file complaints under the Act. 

122.         Ms. Bowen argues that if her complaint is upheld she should be given the option of being reinstated to her employment, see; L & L McCaw Holdings Ltd. o/a Canadian Tire v Yin, 2019 CanLII 64732 (OLRB) (“Canadian Tire”).   In the alternative, she should be given full back pay from the date of termination of employment (April 22, 2020) to the date of the Board’s decision, plus one month per year of service as compensation for the termination of her employment, see; Canadian Tire, supra. 

123.         Moore argues that its attempts to accommodate Ms. Bowen’s medical limitations cannot constitute a reprisal unless it can be established that there is a “patently obvious” nexus with her attempts to enforce her rights under the Act.  It argues that Mr. Faber did not say that Ms. Bowen’s January 2020 complaint under the Act, or her complaint about Family Day influenced the proposed accommodation plan, nor did he say that he was frustrated by the Family Day email, but rather that Moore had to be careful because it appeared to him that she had planted a “landmine”.  It argues that Mr. Faber testified that the accommodation issue was separate from any of the issues Ms. Bowen was asserting under the Act.  It argues that even if Mr. Faber was frustrated, how he feels is irrelevant, rather the Board should be concerned about what Moore actually did.

124.         Moore asserts that it did not rely on Mr. Nixon’s April 20, 2020 email in deciding to terminate Ms. Bowen’s employment, but rather the email of April 17, 2020 in which it was asserted that things would get worse for Moore.  Moore says that Mr. Faber’s testimony demonstrates that the decision was made at that point, and not later, but that the implementation of that decision was delayed in order to consult with counsel and to prepare the termination letter. In response to the arguments made by Ms. Bowen about the various grounds set out in the termination letter, Moore argues:

125.         Finally, Moore argues that in this case reinstatement is not appropriate and that at best the Board should award, if anything, is two months of pay, and nominal damages in the range of $500.00 to $1,000.00. 

126.         Based upon a review of the evidence, Ms. Bowen asserted the following allegations of reprisal:

127.         I have already set out the relevant portions of the Act.  It is useful to set out the applicable legal principals.

128.         Section 74 of the Act prohibits an employer from intimidating, dismissing or otherwise penalizing an employee, or threatening to do so because the employee has engaged in or intends to engage in one of the actions listed in section 74(1).  There must be a connection between the exercise of the right and the employer’s actions.  The onus of proof rests with the employer.  As noted by the Board in Fast Freight, supra:

129.         I will not comment on the merits of the underlying complaints under the Act made by Ms. Bowen.  The Board has made it clear, albeit in the context of a complaint of reprisal under section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c O.1, as amended, that it will not determine compliance with the Act or any underlying issue, see; James v. Toronto Transit Commission, 2008 CanLII 46566 (ON LRB) (“TTC”).  In a reprisal case, the focus is principally on the employer’s explanation and rationale for its actions.  In any event, the matters which she sought to address, barring the claims for the 2018 bonus and the allegation of reprisal, have already been addressed by way of the Board’s Interim Order. 

130.         It is important to note what this case is not about.  Despite the evidence and arguments about the matter, this case is not about whether there was just cause for the termination of Ms. Bowen’s employment.  It may be that the presence of cause may bolster an employer’s explanations for its actions, just as the absence of cause may suggest an improper motive.  However, just cause is not the focus of an inquiry under section 74 of the Act, rather the issue is whether the employment consequences complained of constitute a penalty which in turn is causally related to the exercise of rights under the Act such as to be deemed to be a reprisal. 

131.         This case is not about whether Moore met its duty to accommodate under the Code.  In the context of a reprisal complaint, the Board’s inquiry is limited to the question of whether the accommodation provided to Ms. Bowen constitutes a penalty within the meaning of the Act, see; Chantal Cheff v. Madonna Care Community and Sienna Senior Living, 2021 CanLII 40297 (ON LRB) (“Sienna Senior Living”) and TTC, supra. 

132.         Based upon the evidence, Ms. Bowen:

133.         Moore argues that Ms. Bowen’s motive in filing complaints under the Act (specifically, those complaints filed in 2020) was to extract a payment and set up a reprisal claim. 

134.         In support of her argument that the motive for filing a complaint under the Act is irrelevant, Ms. Bowen relies upon Lozza, supra.  In that case the Board noted that the letter by which Ms. Lozza sought to enforce her rights was “vitriolic”.  That letter, among other things, accuses her employer, Mr. Tereszko, of fraudulent misrepresentation in his business dealings generally and in his dealings with her specifically.  She calls him a psychopath, a fake, a liar and a cheat.  Upon receipt of Ms. Lozza’s demand letter and subsequent application for review and because of certain other alleged conduct, Mr. Tereszko contacted the Ontario Provincial Police, who in turn filed charges against Ms. Lozza.  Those charges were later retracted.  The Board found that Mr. Tereszko had engaged in reprisal notwithstanding the manner in which Ms. Lozza choose to express her entitlements under the Act.  The Board made the following comments:

135.         There was of course nothing offensive about the manner in which Ms. Bowen communicated her attempts to enforce her rights under the Act and Lozza, supra, does not speak to the employee’s motive for filing her claim, beyond her attempt to seek enforcement of the Act albeit in an offensive manner.  For that reason I do not find Lozza, supra to be of assistance here.

136.         An applicant’s motivation for seeking compliance with the Act or filing a claim with the MOL (or the Board) is generally not relevant to whether or not there was a violation of the reprisal provisions of the Act.  In the context of an application such as this one it is generally sufficient that an individual has sought enforcement of the Act in some manner.  Beyond Lozza, supra, which for the reasons I have already set out is not particularly helpful, neither of the parties have provided the Board with jurisprudence in which the Board has clearly considered circumstances in which an underlying complaint was filed in bad faith or for purposes of establishing a reprisal claim as is alleged here.  However, I agree the underlying motivation for filing a claim might be relevant to an applicant’s credibility, see; Rubio v. A Voz-Portuguese Canadian Newspaper Ltd., 1997 CanLII 24779 (ON HRT).  I also agree that there may be circumstances where a bad faith motivation casts a pall over the underlying complaint such that it is relevant to the Board’s analysis, but the misconduct in filing such a complaint must be obvious given the protections granted by section 74.  In Jennifer Umlauf v St. Joseph's Health Centre Toronto, 2017 CanLII 84513 (ON LRB) (a case decided under section 50 of the OHSA) the Board considered whether a complaint of harassment constituted an attempt to enforce that legislation pursuant to section 50(1) whether the conduct at issue was merely an attempt to manage the workforce.  The Board commented, at paragraph 55:  

137.         It is difficult to see any obvious bad faith associated with the complaints filed by Ms. Bowen when viewed on their own.  However, the facts of this case when viewed in totality suggest that Ms. Bowen’s motives in attempting to enforce the Act may have been, at least in part, motivated by her desire to obtain a satisfactory payment from Moore.  Ms. Bowen’s motive becomes suspect when considering, among other things, that she raised the box issue yet was prepared to drop the issue if she got a payment, set a schedule by which she would undertake certain actions, including filing complaints under the Act, unless she received a payment and then warns that things will only get worse if the payment was not forthcoming.  That email comes on the eve of when she was to send her proposed letter to Jones.  It is also concerning that Ms. Bowen ascribes a reprisal motive to everything that Moore did, including asking to meet with her to discuss her accommodation requirements.  However, I need not make any determination of bad faith in this case, obvious or otherwise.  I prefer to examine whether or not there has been reprisal contrary to the Act on the merits of the allegations themselves. 

138.         There is clearly a difference of opinion between the parties about whether Moore had met its duty to accommodation and, relevant to this application, whether certain aspects of the accommodation plans constitute a reprisal.  Moore argues that an alleged failure to accommodate does not constitute a reprisal unless it can be said to be a penalty and while it did not provide the Board with any relevant caselaw on this issue, I agree with that contention.  While Ms. Bowen asserted that certain elements of the accommodation plans constitute a penalty, she did not take issue with Moore’s statement of the law. 

139.         Although the case was decided under section 50 of the OHSA, I accept and adopt the Board’s comments in  Sienna Senior Living, supra, (at paragraph 11):

140.         In TTC, supra, the Board commented at length on its authority, to determine whether an employer had met its duty to accommodate pursuant to the Code in the context of an application pursuant to section 50 of the Occupational Health and Safety Act:

141.         For all of these reasons, the Board will not determine whether Moore met its duty to accommodate under the Code.  Nor, despite the evidence elicited in cross examination, will the Board opine on whether Ms. Bowen is disabled such as to trigger the duty to accommodate, whether her medical limitations are legitimate or whether she sought an accommodation as part of what Moore asserts was her plan to extract a payment.  These issues are best left to the HRTO in the context of Ms. Bowen’s complaint under the Code.   Rather the issue before the Board is whether the elements of the various accommodation plans about which Ms. Bowen complains, namely the cessation of the gas card and car allowance and the requirement to work out of the office and attend weekly meetings with Mr. Abbott constitute a penalty or a punishment because she filed complaints under the Act.  For the reasons that follow, I find that they do not.

142.         I start with the meeting called by Moore for January 29, 2020 which Ms. Bowen asserts was a reprisal.  It is not surprising that Moore would meet with Ms. Bowen to discuss her accommodation requirements and the attendant accommodation plan given that it had just received detailed medical information from her doctor.  That Moore wanted to meet with her was well within what any reasonable employer should do and what it is legally required to do.  I am therefore not persuaded that the meeting, by itself, is a reprisal.  There is simply no evidence that such a meeting could ever be construed as a penalty or a punishment.  That she would construe such a meeting to constitute a penalty casts a pall over the credibility of her testimony in relation to the various accommodation plans. 

143.         It is true that all of the other Account Managers, unlike Ms. Bowen, had a gas card and a car allowance and that none of them were required to attend weekly meetings with Mr. Abbott or to work from the office as Ms. Bowen was required to do pursuant to the terms of the various plans.  However, none of the other Account Managers had the same kind of driving limitations as Ms. Bowen.  In the absence of anything to the contrary, I accept that this was the first instance in which Moore had to consider how to accommodate a travelling salesperson who normally spent 50% of her time on the road and who could then not drive more than 2.5 hours per week.  As was made clear in the evidence, the accommodation plans were intended to be trials by which Moore could determine if both the needs of the business and Ms. Bowen were being met, in other words, the accommodation arrangements would be subject to change as necessary.  Moore’s concerns about its own business needs is underscored by the decline in Ms. Bowen’s sales in December 2019 and January 2020 (which she did not dispute).

144.         Like the circumstances in TTC, supra, the facts here lead to the conclusion that there was a simple difference of opinion between the parties about what constitutes reasonable accommodation rather than an attempt by Moore to penalize Ms. Bowen because she filed complaints under the Act.  As Ms. Bowen acknowledged, an employer’s accommodation of an employee’s medical limitations may entail changes to the terms and conditions of employment.  However, that there were changes to Ms. Bowen’s employment does not mean that the changes constitute a penalty such as to be found as a reprisal under the Act.  There is simply no evidence, beyond the simple timing of her complaints in the midst of the accommodation process, of a causal nexus between the various accommodation plans and Ms. Bowen’s efforts to seek enforcement of the Act. 

145.         There is a disagreement between the parties about whether Ms. Bowen routinely worked from home prior to the onset of the reported driving limitations.  Prior to the onset of the reported medical limitations, Ms. Bowen was driving at least 50% of her work time, and she was in the office from time to time dealing with customer service issues, customer orders, and picking up or dropping off samples.  She no doubt also did at least some work from her home office although beyond the bald statement that she worked from home, the Board was presented with no evidence about how much time she spent working from home given her overall duties or what functions she did from home.   However, I need not determine that dispute.   I accept that the purpose behind the requirement that Ms. Bowen work from the office was for Moore to determine if the needs of the business could be met given that Ms. Bowen could no longer do what she agreed was a significant and essential duty of her position, namely be on the road 50% of the time seeing customers.  I accept that Moore was attempting to determine what tasks Ms. Bowen could do given that she would no longer be on the road 50% of her working time.  Perhaps more significantly, the requirement to work from the office was in keeping with the recommendation set out in the initial medical note provided by Ms. Bowen.  That note provided an alternative; that she work from home or from the local office.   That Ms. Bowen did not agree with the option chosen by Moore does not make the requirement a penalty within the meaning of the Act.  That conclusion is underscored by Moore’s attempts to respond to her concerns by offering various alternative office space, and then by ultimately acquiescing to her demand that she not be required to report to the office (provided she continued to meet with customers). 

146.         I reach the same conclusion as it relates to the requirement that Ms. Bowen attend weekly meetings with Mr. Abbott.  Again, Moore was attempting to determine whether its business needs were being met and how best to manage Ms. Bowen’s accommodation requirements.  How was Moore to manage and review the process unless it met with Ms. Bowen to determine whether or not the accommodation plan was effective or required adjustments and whether its customers were being serviced?  Again, that Ms. Bowen did not agree with that requirement does not make the requirement a penalty such as to be construed as a reprisal..

147.         I accept that when Moore proposed the withdrawal of Ms. Moore’s gas card and car allowance it did so because Ms. Bowen would not be driving in the course of her duties in the manner that she had prior to the onset of those reported limitations, something that Ms. Bowen acknowledged.  I make no determination as to whether the continuation of her gas card and car allowance would have constituted undue hardship.  That is best left to be determined in the context of Ms. Bowen’s application before the HRTO.  I accept that Moore believed that it would not be necessary to continue those benefits when her travel would be compensated through other means (Go Train, Uber, reimbursement for kilometers driven, and the use of Moore’s trucks to transport samples).  Once again, that Ms. Bowen disagreed with these changes does not mean that these changes constitute a penalty or a punishment pursuant to section 74.  The same is true when considering that the other Account Managers continued to paid a car allowance and have use of a gas card.  The other Account Managers did not have the same driving restrictions as Ms. Bowen and were not paid for travel in the same was Ms. Bowen was to be compensated under the various iterations of the accommodation plan.  That the changes to her car allowance cannot be said to be a penalty within the meaning of the Act is underscored by the changes Moore made to the accommodation plan in response to Ms. Bowen’s concerns and criticisms.  Ms. Bowen acknowledged that it may be reasonable to reduce her car allowance, although she disagreed with the cancellation of her gas card.  It therefore does not follow that Moore penalized Ms. Bowen when pursuant to the further revised accommodation plan it proposed a pro-rated car allowance to cover both business and personal travel.  I accept that Ms. Bowen’s travel costs, including any vehicle and gas costs, would be compensated by other means.  Unlike Ms. Bowen, he other Account Managers maintained their gas cards and car allowance even after they stopped seeing customers in person due to the COVID-19 pandemic.  However, the evidence indicates that at least Mr. Stocki quickly began to drive as much or more than he did before the pandemic.  That is not something that Ms. Bowen would ever reasonably be expected to do given her medical limitations, and again, any travel costs that she would experience would be covered in other ways.  Again, that she disagreed with the manner in which Moore proposed to accommodate her travel costs does not mean that Moore reprised against her.

148.         In the context of Moore having repeatedly requested the return of Ms. Bowen’s gas card and finally cautioning about what would occur if she did not, I cannot find that the cancellation of Ms. Bowen’s gas card constitutes a penalty contrary to the Act.  This outcome is precisely what Ms. Bowen was warned would happen.  While she clearly disagreed with the decision to end her gas card privileges, I cannot find its cancellation to be a penalty when she held on to it against her employer’s express directions.  Nothing in my decision turns on this, but I simply note that in the ordinary course a gas card such as the one at issue is normally said to be the employer’s property. 

149.         In her evidence Ms. Bowen characterized the accommodation process as a “one way street” and “dictatorial” and therefore, by inference, a reprisal.  Accommodation is a bilateral, multi-party process that engages both of the workplace parties.  Moore engaged with Ms. Bowen’s criticisms by repeatedly amending the accommodation plan to meet her concerns.  I acknowledge that it may well have done so out of some frustration or irritation with the speed at which the accommodation process was unfolding, but that does not change the fact that it engaged in a kind of give and take that undermines the argument that the accommodation plans and the process used to reach the final version of the plan constitutes a penalty under the Act.  As argued by Moore, if it had wanted to punish Ms. Bowen it would not have altered the plans to accede to her concerns.  I agree.

150.         Finally, in her evidence Ms. Bowen alleged that Moore’s warning that there may be consequences to her employment should she fail to participate in the accommodation plan constitutes a threat contrary to the Act.  Human rights jurisprudence recognizes the obligation of an employee to participate in the accommodation process.  In Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 the Court stated (at paragraph 23):

151.         There is no evidence that Ms. Bowen ever attempted to comply with the various proposed accommodation plans despite the protracted attempts by Moore to finalize a plan and its various attempts to accede to her criticisms.  For example, she never tried working from the office, she held onto her gas card until it was cancelled by Moore, and there was no evidence before the Board that in order to meet her customers she used the various means of transportation proposed by Moore, rather her gas consumption suggests that she may well have continued to drive to see her customers (although I make no finding in that regard).  Beyond her complaints about the accommodation plans proposed by Moore, Ms. Bowen did not make any constructive suggestions of her own.  She testified in support of her argument that she continued to use her car to see customers and therefore should have been permitted to maintain her car allowance and gas card and that her husband drove her to see her customers.  The Board did not hear from Ms. Bowen’s spouse and in the course of defining the accommodation plan she never suggested to Moore that her spouse could assist her in this manner.  I am not prepared to accept that he did.  It appears, given her gas consumption that Ms. Bowen may well have continued to drive beyond her medical restrictions (although I need not make that determination).  In all of these circumstances I am not persuaded that the warning given by Moore constitutes a reprisal.  Even if Moore’s warning could be perceived as a threat, I am not persuaded that it is causally related to any attempt by Ms. Bowen to seek enforcement of the Act rather it was, in my view, borne out of an intention to compel Ms. Bowen to uphold her part of the accommodation process.

152.         Finally, that Mr. Faber said he was frustrated by the fact that the complaints came in the midst of what was otherwise a slow march towards reaching a final accommodation plan does not, in my view, establish any kind of connection between the terms of the various plans and Ms. Bowen’s attempts to seek enforcement of the Act.  The subjective feelings of a person are not relevant.  What is relevant are Moore’s actions.  As already noted, Moore responded to Ms. Bowen’s criticisms and lack of participation in the accommodation process by amending its plans in order to meet her concerns, criticisms and medical limitations. 

153.         Based upon the evidence before the Board I am not persuaded that the requirement to attend a meeting on Family Day 2020 (February 17, 2020) constitutes a penalty within the meaning of the Act.  Whether or not that requirement constitutes a violation of the holiday provisions of the Act is not before the Board as it was addressed by way of the Board’s Interim Order to Pay and in any event, the merits of her complaint about the matter is not relevant to an inquiry under section 74 of the Act.

154.         Ms. Bowen testified that she was in receipt of Moore’s 2008 policy and January 2020 memo designating Family Day 2020 as a working day.  In the absence of anything to the contrary, I accept that Family Day had been a working day at Moore for many years and that Ms. Bowen had worked on those days (seemingly without any complaint before February 2020).  In that context the requirement to attend a meeting in furtherance of establishing an accommodation plan cannot be said to be a penalty even if that meeting was scheduled on Family Day given that it was a working day at Moore.

155.         For all of these reasons, I am not persuaded that the various accommodations plans constitute a penalty or that the terms of the plan are in any way causally connected to Ms. Bowen’s efforts to seek enforcement of the Act. 

156.         According to Ms. Bowen, her January expense cheque ought to have been in her cubby by February 15, 2020 and some of her colleagues told her that it was not.  Neither Ms. Hewlett nor Mr. Stocki were asked about the matter.  Mr. Faber said that the cheque was prepared on  February 12, 2020 and it would have been placed in her cubby by February 15, 2020.  She received it on February 18, 2020.

157.         I prefer Mr. Faber’s direct evidence over the hearsay evidence offered by Ms. Bowen and therefore am not persuaded that the cheque was late or that there was a reprisal in relation to the delivery of the payment. 

158.         Ms. Bowen asserted in her evidence that Moore’s assertion that her complaints (Family Day, commission deductions, 2018 bonus) were without merit and that it would defend against those complaints constitutes a threat contrary to section 74.  I do not agree.  The statement is nothing more than a litigation position and Moore was well within its rights to advise Ms. Bowen of its position in response to her complaints. 

159.         As already stated, this case is not about whether there was cause to terminate Ms. Bowen’s employment.  I make no finding on that issue. 

160.         Mr. Faber testified that he made the decision to terminate Ms. Bowen’s employment when he received the April 17, 2020 from her counsel in which it is stated that things would only get worse for Moore and because the next step on the scheduled set out in the March 27, 2020 email was to send a letter to Jones and thereafter to 20 of Moore’s biggest clients alleging improper and fraudulent business practices.   Of course, Ms. Bowen’s employment was not terminated until April 22, 2020.  The timing of the actual termination of employment might be suspect given that there is no physical record of the decision having been made on April 17, 2020 and any testimony that a decision was made without regard to an employee’s efforts to seek enforcement of the Act should be viewed with some caution.  It would be surprising if an employer testified otherwise.  The close proximity in time between the termination of Ms. Bowen’s employment and her various complaints under the Act, without more, may lead to the conclusion that the two are causally related.   However, there is more in this case. 

161.         Ms. Bowen said unless she was paid $400,000.00 she would send a letter to Jones alleging intentional fraud in circumstances where she had already been advised that Moore had addressed the matter directly with that company, and that same letter to 18 customers with whom she had no dealings and no knowledge of the boxes those customers purchased or the ECT stamps thereon.  These were the next steps on her schedule.  I accept that Mr. Abbott terminated Ms. Bowen’s employment in the face of the risk that she would send the letter about the box issue to Moore’s biggest clients thereby potentially risking up to 40% of its overall revenue and not because of her complaints under the Act.  Moore was rightly concerned the threat to send the letters to its clients and the potential harm to the company those letters may have wrought.  Even Ms. Bowen acknowledged that the letters would be damaging.    I accept that Mr. Faber made the decision to terminate Ms. Bowen’s employment when he received the April 17, 2020 email in which it is that things would only get worse for Moore.  That email came on the eve of when Ms. Bowen said she would start sending the letters to Moore’s customers.  It is significant that Moore did not terminate Ms. Bowen’s employment after she carried out the first part of the March 27, 2020 schedule by filing a complaint with the MOL on April 3, 2020.  Had Moore wanted to punish her for seeking enforcement under the Act by ending the employment relationship it stands to reason that it would have done so at that time or at some earlier point when she complained about Moore having made deductions from her commissions or its requirement that she attend a meeting on Family Day 2020.  

162.         That there was a delay between when Mr. Faber made the decision to terminate Ms. Bowen’s employment and the implementation of that decision does not change the conclusion that her employment was terminated for the reasons asserted by him and not because she filed complaints and sought enforcement of the Act.  It is certainly reasonable that an employer would, in all of the circumstances present in this case, want to seek legal advice and proceed with caution.  For these reasons I am not persuaded that the mere timing of content of the April 17, 2020 email wherein it is stated that Ms. Bowen would send her complaint to her colleagues means that her employment was terminated because of that proposed action as Ms. Bowen asserted. 

163.         Ms. Bowen explained in her evidence that she thought that her actions constituted normal negotiations between an employee and an employer.  That assertion is completely lacking in credibility.  It is far from normal to threaten one’s employer by impugning its business practices (and in some instances, without any foundation) in order to obtain a payment. Her assertion that she raised the box issue and drafted the letters out of concern for her own liability also lacks credibility when considered in the context of her seeming willingness to stay mute on the issue in exchange for a payment from Moore.  That would hardly resolve the liability about which she said she was concerned.  Her assertion is simply not credible and does not explain why she said she would send letters to Moore’s customers about the matter unless she got a payment.  I also do not accept that Ms. Bowen only wanted Moore to talk to her about the box issue. It did tell her that it had addressed the matter directly with Jones and she never raised any concerns about the boxes sold to any of the other customers to which she said she was going to send letters – likely because by her own admission she had no dealings with any of those customers and therefore had no knowledge of the boxes Moore sold to any of them.  Presumably the payment would have eliminated the need for any discussion given that she was prepared to let the matter go if she got paid.  I do not accept the argument that her proposed settlement as set out in the March 27, 2020 did not include a confidentiality clause or a non-disparagement clause.  It cannot be that she would have accepted money from Moore in exchange for her not writing to clients or doing any of the things she said she would do and then simply continued on with the letters.  That is simply not credible.  Whether or not Ms. Bowen’s actions constitute cause for termination of employment or whether, as Moore alleged, she was seeking to extort her employer, is not a matter the Board will determine.  It is sufficient to state that an employee who threatens to damage her employer should perhaps expect a swift reaction from that employer.  That Ms. Bowen was taken aback or surprised by Moore’s actions is completely lacking in any credibility.  She was clearly warned about the consequences of her conduct and it should come as no surprise that on the even of when she was to send the letters Moore would seek to end her employment.

164.         Ms. Bowen argues that the termination decision was premature because she did not send the letter to Jones when it was first drafted and that she may never have sent the letter to Jones or any other customer.  How was Moore to know this given that she had done everything else she said she was going to do by way of the March 27, 2020 email?  Ms. Bowen never communicated that intention.  Had she done so there may have been a different result.

165.         For all of these reasons, I find that Ms. Bowen’s employment was terminated because of her stated intention to send damaging letters to Moore’s clients and not for any reason related to her various attempts to seek enforcement of the Act.

166.         Neither of the parties asserted that the payment of the bonus was discretionary.  I therefore find that the sales bonus constitutes wages as that term is defined by the Act. 

167.         However, I am not persuaded that Ms. Bowen has met her onus to demonstrate her entitlement to the sales bonus.   The Board makes its determination in these matters based upon the best evidence before the Board.  Ms. Bowen relied on hearsay to support her contention that it is or was Moore’s practice to pay the bonus in the circumstances where an Account Manager gets close, but does not achieve his or her sales target.  I give that evidence little weight in the absence of hearing from those employees whom she asserts was paid in those circumstances.  I accept Mr. Faber’s evidence that based upon his firsthand review of Moore’s records that during the period between 2015 and 2019 Moore did not pay out a bonus to any Account Manager who did not meet 100% of the target. 

168.         For these reasons, Ms. Bowen’s claim for payment of a sales bonus for 2018 is denied.

169.         For all of the reasons set out herein, this application is hereby dismissed.