In a dramatic wrongful dismissal case involving defiance, whistle-blowing and contempt, a former union worker who had been sentenced to three months in jail for his misconduct during the lawsuit has had his punishment reduced to 14 days of house arrest on appeal.
The worker’s acts included leaking a confidential report to the media and the Premier of Ontario, and the failure to comply with court orders to delete a confidential list of union members and hand over his computer and phone for inspection, which he decided to destroy instead over privacy concerns.
Background: Wrongful dismissal and leaking the document
MO worked for LiUNA Central and Eastern Canada Organizing Fund II (CECOF) as a union organizer. He reported difficulties with his supervisor, FM. He accused FM of physical harassment, threats of dismissal, and pointing a firearm at him. An independent investigation substantiated these allegations, resulting in FM’s termination.
In February 2017, MO’s employment was terminated for reasons allegedly unrelated to the investigation. He then initiated a wrongful dismissal action, which included claims against FM and the union.
During the discovery process, MO received a confidential report related to the investigation. Despite its confidential status, he emailed the report to the Office of the Premier of Ontario, a reporter at the Toronto Star, and two other non-parties, identifying himself as a whistle-blower. His lawyer advised him to retract the report, but he refused and even expressed intentions to publicize it further.
CECOF and Local 183 moved to find MO in breach of the deemed undertaking rule and sought various remedies, including dismissal of the wrongful dismissal claim.
The motion judge found MO had indeed breached the rule by emailing the report to unauthorized parties. The judge rejected his claim of not understanding the breach, acknowledging that he had been advised multiple times about the confidentiality of the report and had refused to retract it.
The judge also considered MO’s conduct in related proceedings, including a defamation action brought against him (see below) and a breach of confidence action related to a confidential contact list of union members.
The motion judge determined the breach was serious and had no litigation purpose. After considering other remedies, the judge concluded that no other remedy would suffice, striking out the appellant’s pleadings and dismissing the wrongful dismissal action with costs of $36,725.
Background: Finding of contempt in breach of confidence action
In November 2020, the business manager of Local 183 tried to act on a judgment related to defamatory comments. In response, MO threatened to spread bad things about the business manager to a list 10,000 people. The respondents asked MO to return the confidential list and not use it again.
MO replied by sending them a list with 13,000 names, addresses, and phone numbers. Local 183 took legal action against him, and a judge ruled on Dec. 23, 2020. The judge’s order included:
- MO must give back all confidential contact information.
- MO can’t share or use the confidential list, and they must get rid of all copies.
- A company called Computer Forensics Inc. will check the MO’s devices and email to make sure all confidential information has been deleted.
MO was concerned about privacy, and the judge ensured that it would be respected. MO tried to appeal the judge’s decision but failed. Even after the order, he kept the confidential list, and when warned, he didn’t follow the order.
A court conference was scheduled, but he didn’t attend, citing personal reasons. The judge made another order for MO to follow the original order by Jan. 29, 2021, and pay a fine, but he ignored it again.
A hearing was held on Feb. 26, 2021, and the judge found MO in contempt. The judge gave him a chance to fix things by bringing his devices for an inspection. The judge also warned him that he could go to jail.
After the hearing, MO destroyed his computer and phone and didn’t cooperate with the inspection. The judge held a sentencing hearing, and although jail was initially delayed due to COVID-19, MO was eventually ordered to serve 89 days in jail once the jails reopened.
He was allowed an intermittent sentence due to caring for his sick parents and his own health problems. He was also ordered to pay $75,000 in costs.
The appeal: Jail time too harsh
MO appealed these rulings to the Court of Appeal for Ontario, raising what it called a “broad array of issues.”
On the issue of jail time, the Court of Appeal ruled the 89-day sentence was too harsh. While the court agreed MO did something wrong, and showed disrespect for the court, jail time was not considered a reasonable punishment in this case.
MO had tried to make things right in his way, and there’s no evidence that he kept confidential information that he shouldn’t have had. He had already lost a legal action and had to pay substantial money. He also has health concerns, family responsibilities, and no criminal record, so jail time is seen as too steep a penalty, it said.
Instead, it substituted a conditional sentence of 14 days. This means MO will be under house arrest for 14 days, with certain allowances for medical needs, shopping, and complying with specific court orders. He must also behave well during this time and carry a copy of the conditional sentence order if he leaves the house, the court said.
It also reduced the $75,000 in costs for the contempt proceedings to $50,000 all inclusive. No costs were ordered on the appeal as success in this case was divided, the court said.
For more information, see Oliveira v. Oliveira, 2023 ONCA 520 (CanLII)
