I just started to learn business law. When I read the following case, something that puzzled me is

What could the parties have done to avoid legal action? and

What policies could be put in place in the future in the relevant businesses?

Overview

The Plaintiff Kevin Bacon ("Bacon") is a former employee of Zippy Cable Inc.,

("Zippy") who worked there for approximately 15 years until he resigned in December 1999, in order to pursue other employment opportunities in the Cable Industry in the United States.

About two years later he returned to his hometown of Waterloo hoping to resume his career in the Cable Industry here as an independently employed technician.

Zippy, which is the successor of the Trillium and Shaw Cable Companies, enjoys a virtual monopoly on the Cable Television and fibre optic businesses, in Waterloo and Waterloo

County.

Master is an independent outside contractor which supplies highly skilled technicians such as the Plaintiff to undertake cable and fibre network installations and servicing for Zippy in Waterloo/Waterloo County. It also conducts cable installations and servicing for other customers in Kent and Waterloo Counties. In Waterloo County, however, Zippy is by far its largest customer.

Bacon sought and obtained employment offers from Master Canada ("Master") in

February and May 2001 but on each occasion either at the point of hiring or almost immediately thereafter, he was advised by Master that it could not let him continue working and he was therefore terminated.

On the two occasions referred to, representatives of Zippy told representatives of Master that it did not want the Plaintiff working on Zippy property although it acknowledged that Master could employ the Plaintiff elsewhere in its operations, so long as this did notinvolve any plant, premises or equipment of Zippy.

The Issue

The central issue from the Plaintiff's perspective is whether or not there has been an unlawful interference with his contractual and economic relations with Master, for which he says, he has suffered damages.

Subsequent to his resigning from Zippy in 1999, the Plaintiff earned approximately

$80,000.00 Canadian per annum as a piecework contractor-technician working for a company called T.S.I. in the United States. When he decided to return to Ontario he applied to work for Master in February 2001. He says that he was prevented from doing so because of the interference of Zippy. He unsuccessfully endeavoured to find alternate employment in his chosen field but ostensibly, because of the dominance of Zippy in the Waterloo County market place, there was no other similar employment available to him.

Eventually he was able to obtain a job with Canadian Pacific Railways where, after suitable training, he became certified as a Conductor, with an annual salary of approximately

$44,000.00 before trial. However, after several months he was laid off from that position and at the time of trial, he was subsisting on Employment Insurance benefits. There is some indication that he might be recalled in 2005 by C.P.R.

Bacon is married and has two children. His wife suffers from a disability which prevents her from sitting or standing for prolonged periods of time and as a consequence, the

Plaintiff has had to remain fairly close to home in order to take over household and homemaking duties ordinarily performed by his wife. Additionally his 17-year-old daughter is an accomplished hockey player and as such, this has meant that most weekends during hockey season are spent by the Plaintiff travelling with his daughter and her team to various games and tournaments, in addition to practice and game commitments during the week. Apparently he also provides assistance to his 85-year-old grandmother and her 65-year-old developmentally challenged son as well as his 75 year-old father-in-law.

All of the foregoing means, therefore, that from the Plaintiff's perspective at least, he is somewhat tied to the Waterloo/Waterloo County area which would make the prospect of him travelling very far in order to carry out employment, somewhat problematic for he and his family members.

The Facts

From the evidence of the various witnesses called on behalf of both parties, it is apparent that the employees of Zippy and its predecessors were a very close and harmonious group who, it was stated by several, really interacted like a family unit. In addition to their shared employment experiences, they would frequently enjoy a beer after work and as well, they socialized at employee-organized company events such as house parties, barbeques, and the like.

It is the Plaintiff's impression that he got along well with everyone and was a respected member of the Zippy team and he was not aware that anyone harboured any ill will toward him.

When he resigned his job in December 1999, he was presented with a going-away present and a "goodbye card" from his fellow employees, which was signed by virtually everyone at the office, including one Leo Underhill ("Underhill") who, as the facts unfolded, became the Plaintiff's nemesis. Because his United States-based work in the Metropolitan Detroit and Chicago areas was due to wind down in June 2001, the Plaintiff decided to return to Waterloo. In preparation for his return, Bacon approached Master and spoke with one Jim Vine about the possibility of obtaining employment there. He was requested to return on February 8th, 2001, to see Don Lacharite, Vine's Supervisor.

The Plaintiff testified that both Vine and Lacharite were excited about the prospects of his coming to work for Master because his experience and skill level meant that their company could bid on bigger and higher end jobs in the cable and fibre optic business.

He was hired and instructed to report for work the following Monday. However, when he showed up at that time, Vine advised him that the company did not in fact have a job for him. When the Plaintiff questioned this, he was told that he was on a "need to know" basis and Vine could not tell him anything further. However, in that conversation Vine inquired of the Plaintiff why Underhill did not like him. This apparently came as a complete surprise to Bacon. The implication was that Zippy had, behind the scenes, told Master not to employ him.

Having quit his Detroit job in order to return to Waterloo and because he was unemployed, the Plaintiff sought the advice of Peter Hrastovec a Waterloo lawyer who commenced correspondence with Zippy, taking the position that what had occurred was in effect, an interference with Bacon's contractual relationship with Master and that the result of Underhill's actions amounted to a "black-listing" of the Plaintiff in the local cable and fibre optic industry.

When he similarly attempted to apply for work at Silverline Cable a Waterloo cable subcontractor similar to Master he was advised by its owner one Paul Saldon, that although he would be very interested in hiring the Plaintiff, there was a rumour floating around that he could not do so. Silverline like Master, was an independent contractor, which supplied technical services to Zippy.

When he was dismissed by Master, the company offered the Plaintiff a job in its

Windsor or London operations, however it would not pay his for commuting expenses. The

Plaintiff stated that he elected not to pursue this opportunity because he could not afford to, (quite apart from the fact that it would require a minimum 2 to 3 hours in each direction per day to commute) and as previously described, the state of his wife's health made it necessary for him to be closer to home as often as he could, in order to attend to her needs and as well run the household. At that time she was considered totally disabled and she was receiving a Canada Pension disability pension.

Following the initial letter written on his behalf by Mr. Hrastovec, a response was received on or about April 16th, 2001 from one Michael McGuire, the Human Resources Director of Zippy in which he stated that there had not been any direct instructions given by Zippy to Master not to employ Bacon in the Waterloo area.

The Plaintiff took the letter to Mr. Vine at Master and he in turn consulted Zippy to confirm whether or not there would be any problems in hiring the Plaintiff once again. Because this did not appear to be a problem, Bacon was hired by Master for a second time, to commence work on May 28, 2001. He would be paid on a piecework basis. Because his previous job for Technical Services Inc., in Detroit (where he worked similarly on a piecework basis), earned him the equivalent of $80,000.00 Canadian funds for 8 months work, he anticipated a similar income here. However, there was no concrete evidence led by the Plaintiff to confirm this income potential.

Following the commencement of his employment on May 28th, while he was in the Town of Tecumseh working on a Zippy piece of equipment for Master, a problem developed with it. He therefore called Zippy and briefed it of the problem. Shortly after, one Tim Brooks showed up at Bacon's work site and questioned why he was working on Zippy equipment. In response, Bacon told him he was working for Master.

By the time he had proceeded to his next work assignment, Jim Vine appeared and told

Bacon that once again Zippy made it known that he was not permitted to work for Master if he was going to be working on Zippy property. Therefore he was instructed by Vine to take his truck back home while Master attempted to straighten the issue out.

This proved to be unsuccessful because a short time later he was told once again that he was terminated. Master paid him not only for the half day that he had worked, but for two additional days.

Subsequently, in a letter dated May 30th, he was informed by Master management that

Its customer (Zippy) objected to his working on their system but that it had no such objection about the Plaintiff working for Master elsewhere. Because he had been hired in good faith, by

Master, it was prepared to offer him work in other locations such as London or Windsor.

However, because of his expressed family obligations (previously described), there was no other employment that could be offered to him by Master.

It is beyond question that in the ensuring months the Plaintiff undertook a prodigious amount of work in order to attempt to find similar employment elsewhere in Waterloo County without success.

He finally was able to secure a job at Canadian Pacific Railway, where he ultimately succeeded in becoming certified as a Conductor on or about February 26, 2004. He continued to work there on a full-time basis until August 2004 when he was laid off with no anticipated return date before 2005. His annual salary approximated $44,000.00.

In the years 1998 and 1999, while employed on a full-time basis by Zippy, Bacon earned the sums of $47,009.03 and $50,071.26 respectively. The year after his resignation in order to pursue his line of work as a sub-contractor, he earned $86,196.99 principally in the

United States.

The Plaintiff's Employment Evaluations

On a number of occasions while employed at Zippy, the Plaintiff underwent annual evaluations by his Supervisors, and from the documentation and his trial testimony, it is very obvious that he was thought of as a highly skilled and competent employee and technician.

Wayne Hills who is a former Construction Supervisor with Zippy, was the Plaintiff's direct Supervisor in 1992 and had an occasion therefore to observe him both in the field and in the office and he stated as follows in his evaluation; "His nature was always positive, that during work other employees always went to him to get answers to questions, socially he got along well with everyone; there were no negatives; that the Plaintiff would mentor new hires and he had hands on skills."

He also commented that Bacon had a great attitude with constructive and useful concerns, he possessed good inter-personal skills and possessed a very high technical skill level. He was always described as being always courteous and reliable, he demonstrated a good drive and initiative and consistently demonstrated good judgment and was always reliable.

During the course of his trial testimony, Mr. Hills elaborated on a number of other issues pertaining to the Plaintiff's work habits and skills and, he was very positive. There were in fact no negative connotations or comments from him.

Hills also confirmed that on December 15, 1993, a group of 8 Managers and Supervisors of the Defendant, in a Memorandum signed by each of them, characterized the Plaintiff's performance as consistently above "expected" and where required, he troubleshoots cable problems with minimal down time and that he was an excellent employee who brought to

Trillium Communications (the successor to Zippy) a positive attitude and that he was an asset for both the company and its subscribers. They also acknowledged that he was looked up to by his peers and was capable of constructively helping and training other technicians who constantly came to him for answers to field questions.

In 1994, Leo Underhill was the immediate Supervisor of Wayne Hills who had conducted the evaluation. When he was cross-examined, Underhill confirmed that he did not disagree with any of the comments, (all of which were positive) which were listed in Hill's evaluation of the Plaintiff.

Underhill himself conducted an evaluation of the Plaintiff in 1994, which like the others, was glowing, complimentary, and very positive. During his trial testimony he did not retract any of these comments.

Peggy Pagliaroni worked at Zippy and with the Plaintiff for approximately 10 years from 1985 to 1995. During the course of her evidence, she likewise assessed him in very positive terms, using such words as "ideal employee"; "self-taught", "loyal", "articulate", "dedicated", "positive", "highly regarded by management", "team leader", "motivator" and "good people skills".

She also stated that the Plaintiff and his wife were the first ones to welcome any new technicians at the company and that Bacon had excellent working relationships with employees and management.

The witness, Rudy Dauncey, was the Plaintiff's Supervisor during the period September

1, 1998 to August 31, 1999 and during this time Underhill was the Technical Operations

Manager.

Dauncey was the Construction Lead Hand at that time and he remains so employed with

Zippy. In his evaluation of the Plaintiff he too gave a very positive and glowing summation of him and his employment at Zippy.

In it he complimented the Plaintiff on the nature and quality of his record keeping, as well as his truck and equipment. From the technical side of the job Bacon was described as being very effective in trouble shooting on outages and that he had developed an excellent knowledge of the optical receivers that the company was then using in the field and that they had all come to depend on his knowledge of the installation and activation of new nodes.

He also described the Plaintiff as having good communication and inter-personal skills and that he worked well with the staff.

Dauncey also testified that when he received a telephone call from Jim Vine at Master, with respect to that company hiring the Plaintiff, he told Vine that the Plaintiff was a good Technician and that he was excited to see him have the opportunity to work at Master. He described the Plaintiff as highly skilled and that an ongoing project, known as the 860 Upgrade, needed his skills and abilities. This was being performed by Master for Zippy.

In his capacity as Technical Operations Manager, Underhill confirmed that he reviewed all the evaluations of the Supervisors who reported to him and that after reviewing Dauncey's evaluation of the Plaintiff, Underhill confirmed that he had no issues nor did he take any exception with any of the comments made on behalf of the Plaintiff by Dauncey and that he made no changes to Dauncey's evaluation of Bacon.

However, notwithstanding his own positive evaluation of the Plaintiff in 1994, and his ratification of Dauncey's evaluation in 1988-1999, Underhill testified that Dauncey's evaluation represented a marked departure of his own views about the Plaintiff.

With respect to the relationship of the Plaintiff with Zippy, from a different perspective, Bacon testified about a memorandum dated May 7, 1996, which he sent to one Rick Therrien, following an April 16th, 1996 meeting. The document was prepared by the Plaintiff as a point-by-point rebuttal of the allegations being made and orchestrated against him by the then local manager of Zippy as well as Underhill. The Plaintiff categorized these as a retaliation against him for his attempts to bring a union to the company, to address some of the issues that had arisen following the take-over of Trillium by Shaw cable, both of which were ultimately taken over by Zippy.

Following that meeting and the Plaintiff's memorandum, Peter Bissonette a Senior Executive with Zippy came to Waterloo from Toronto to personally apologize to the Plaintiff for this incident and as well, he fired the local Manager Pat Kiely. He further ordered that two memos pertaining to criticisms of the Plaintiff, (one of which concerned the April 16, 1996 meeting), be removed from his personnel file and destroyed. He also cancelled a probation order, which had been imposed on the Plaintiff.

Against this background of overwhelming positive assessments and evaluations of the Plaintiff not only as a person but as an employee and as a skilled Technician, it is useful to examine the involvement of Underhill in order to piece together the factual matrix which serves as the context in which Zippy, at the behest and direction of Underhill treated the Plaintiff in the manner in which it did.

Underhill's resentment or dislike of the Plaintiff, (which was the evidence of several witnesses) was probably heightened by the fact that the Plaintiff's May 7, 1996 memorandum to Rick Therrien went over the head of Underhill and resulted in Peter Bissonnett, Underhill's boss, arriving in Waterloo to personally apologize to Bacon and fire the local Manager. This no doubt amounted to a rebuke of Underhill's activities and probably in the process, heightened his resentment of the Plaintiff.

Underhill testified that he did not want the Plaintiff working either at Zippy directly or indirectly through its sub-contractor Master because of the concerns from a management perspective, which he had. This was substantially if not completely, based on a discussion he allegedly had with two Zippy employees whom he could not even identify. Underhill testified that they stated to him, that they thought the Plaintiff was bad for the morale of the company. Apart from his own observations about the apparent negative appearance of the Plaintiff's body language on several occasions and his negative mood, this appears to be the sole basis upon which Underhill proceeded to work against the interests of Bacon. The analysis or investigation by Underhill lacked even the minimal of due diligence.

During the course of his testimony, Bacon described and confirmed the contents of his May 7th, 1996 memorandum. In it he apologized that, on some occasions, following the then recent death of his mother and his wife's continuing disability and potential health-threatening condition of blood clots in her legs, these factors all combined to affect his mood from time to time. When questioned about this, Underhill dismissed this out of hand and stated that one should leave one's personal problems at home and not bring them to the office. This is hardly the type of support an employee could reasonably expect to receive from a caring and interested supervisor.

The defence called four witnesses (Umuru, Haggins, Schooley, Brooks) who all testified that they heard the Plaintiff make negative comments about the company. However there was no evidence as to what if at all, affect the comments had on the operation of the company, the performance of the Plaintiff, or the morale of these four or any other employee.

On another occasion, it appears that Underhill for some unknown reason went searching for the Plaintiff and encountered him in one of the company's trucks with two other employees at a Tim Horton's parking lot at 9:00 in the morning. The three of them were having a cup of coffee and going over their daily assignments. Underhill took the rather strident position that the employees in question had no business taking their coffee break at that time of the day and that they should conform to company standards. In response, the Plaintiff testified, that from the experience of he and those he was working with, this was a far more effective and less time consuming method of reviewing the daily work assignments, than travelling all the way downtown to the Zippy offices, before proceeding on their respective ways. There was no evidence from the defence that company policy mandated the taking of a coffee break in any specific manner as to time and place.

Dan Lacharite, the Vice-president of Operations for Master, testified that the Plaintiff was recommended to him for employment by his previous Supervisor, Rudy Dauncey. On the basis of this recommendation as noted earlier, he hired the Plaintiff effective February 2001.

However, on the day the Plaintiff was due to commence work, Underhill called him and suggested, rather ominously, that it would be in Master's best interest if Bacon did not work for it. When Lacharite asked why, Underhill apparently responded that he could not disclose the reason but he reiterated that it was definitely in Master's best interest to ensure that Bacon was not employed there. This resulted in the first of the two terminations by Master of the Plaintiff.

Subsequently, and following a series of exchanged correspondence between the

Plaintiff's solicitor Mr. Hrastovec and the Human Resources Director of Zippy, McGuire, the

Plaintiff was again offered employment by Master on or about May 28, 2991. Ostensibly, because Zippy could not find any substantiation of the claim made by the Plaintiff that Master was not to employ him in the Waterloo area, Lacharite then contacted two senior people at

Zippy, Mike Heinbuch, and Kevin Barnard, to inquire about the problem. He was advised by

Heinbuch that Zippy did indeed have a problem with the Plaintiff being employed by Master.

He also offered the comment that an internal letter, which spelled this out, should never have been sent to Lacharite. Zippy was not dealing with the Plaintiff in a fair or forthright way.

On further inquiry by Lacharite as to the basis for this objection against employment,

Barnard told him that the Plaintiff knew the reason and that he in effect "set Master up".

Therefore, based upon this meddling by Heinbuch and Barnard, Lacharite once again terminated the Plaintiff's employment with Master.

With respect to this second termination, Vine testified that the Plaintiff had been hired with a start day of May 30, 2001. He and Bacon attended at the Zippy offices at which time they met and chatted with Rudy Dauncey and one Bill Sorrell both of whom acted in a positive manner toward the Plaintiff as if they were welcoming him home. However, after this encounter, Vine received a telephone call from Sorrell who instructed him to immediately remove the Plaintiff from Zippy work and on that basis he was terminated the second time.

Michael McGuire the former Human Resources Manager of Zippy who is now a self-employed Consultant, testified that he dealt with the Kevin Bacon issue for the first time in

February 2001. This was in response to a telephone call he received from Underhill questioning whether or not Bacon could be prevented from working for one of Zippy's sub-contractors. After speaking with the Vice-president of Operations it was McGuire's advice to Underhill that Zippy could advise the sub-contractor that it did not want certain employees working on its facilities, if it had "reasonable cause". Underhill was also advised to tell Master that with respect to hiring the Plaintiff, Zippy had no problem with this because Bacon was technically competent, but that he was not to work on Zippy's system.

When McGuire was examined he was asked a series of questions dealing specifically with Zippy policy relating to employment of individuals by its sub-contractors. In response and through counsel, he provided a series of written answers in which he confirmed that Zippy did not have any standard agreement which gave it authority to say who could or could not work on its system. He was unable to provide any information as to whether there was an established practice of dictating to the contractors, their employment practices. However, he did confirm that in the event it was desired that a sub-contractor not employ a certain individual that this position could be taken by Zippy if there was "reasonable cause" for it to do so. Apparently the only other information he had about this type of practice was allegedly told to him by him by Jerry Marshall, the Vice-President of Operations of Zippy who claimed that it was common practice in the industry. However, from Maguire's own experience, this was the first time he had ever heard of it.