Editorial note: This article has been updated since it was originally published on Tuesday, Aug. 1, 2023, at 3:30 p.m. Please see bottom of article for latest updates.
Content warning: The following article contains some sexually graphic comments, which readers may find disturbing or offensive.
A battle that has seen at least a dozen filings with the Ontario Labour Relations Board since it began in March of 2021 has concluded with a decision of the vice-chair of that Board directing a Kingston-based dental clinic to pay out monies owed to a former employee.
The matter at hand, which was overseen by Brian Smeenk, Vice-Chair of the Ontario Labour Relations Board (OLRB), was the application from a former employee to review — and perhaps overturn — an Employment Standards Officer (ESO)’s refusal to issue Cataraqui Woods Dentistry an Order to Pay. The applicant, who will be referred to in this article as Ms. X to protect her privacy, worked as a dental hygienist at Cataraqui Woods Dentistry from 2013 to 2021, and the application was brought pursuant to section 116 of the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the ‘Act’).
Cataraqui Woods Dentistry (which is referred to as CWD throughout Smeenk’s decision and this article), located on Midland Avenue in Kingston’s west end, is owned and operated by Dr. Waji Khan, a dental surgeon and the clinic’s Chief Executive Officer. Khan’s name may sound familiar to Kingstonians: a former member of the Canadian Armed Forces (CAF), he ran to represent Kingston and the Islands for the Green Party in the 2021 federal election. This was the same year by which, Ms. X alleges, Khan and CWD’s Chief Operating Officer Alla Allan had made the dental clinic such a “toxic workplace” that Ms. X was forced to resign. Whether that constituted “constructive dismissal” was also for Smeenk to decide.
The last hearing of the Board took place on Monday, Jun 19, 2023, and the detailed overview and decisions of Smeenk are a whopping 83 pages, out of necessity: the number of issues on the table, stemming from a long list of allegations, required thorough and detailed consideration and reason. Approximately 40 examples of case law are cited throughout the decisions.
The application before Smeenk was also against the Director of Employment Standards (due to the aforementioned refusal to issue an Order to Pay), as well as Dr. S. Vaid, who according to the CWD website is the wife of Dr. Khan.
Ms. X worked for CWD for about seven years, the Board’s documents noted.
“She asserts that she was an employee of CWD. She further asserts that she was constructively dismissed by CWD. She says the workplace had become toxic and unbearable,” Smeenk wrote.
“This was because, she alleges, she had been subjected to bullying and verbally abusive behaviour by CWD’s co-owner and Chief Executive Officer, Dr. Walid [sic] Khan, and to controlling and domineering micromanagement by him and his Chief Operating Officer, Ms. Alla Allan.”
The legal battle began when Ms. X registered a claim with the Director of Employment Standards on March 18, 2021. That application claimed:
- termination pay in lieu of notice required under the Employment Standards Act, 2000
- that she was not paid vacation or holiday pay as required
- that she had been the subject of reprisals
- all of these things, she alleges, violate the Act.
“It became clear that this case was being hotly contested, to say the least,” Smeenk remarked of the lengthy battle, which saw both CWD and Ms. X appeal the decisions made by the Board at one point or another.
CWD asserted that Ms. X was an independent contractor, not an employee, and therefore had no rights under the Act. CWD also disputed allegations made “in support of the constructive dismissal claim.”
“After investigating, the ESO denied [Ms. X’s] claim. In her Reasons for Decision dated May 28, 2021, the ESO found that there was no employer/employee relationship and the Act therefore does not apply. The ESO thus did not rule on the other substantive issues.”
CWD maintained its position throughout the review hearing.
According to notes in Smeenk’s decision, the primary issues before him were:
- Was Ms. X an employee of CWD or an independent contractor?
- If she was an employee, was she constructively dismissed?
“Should [Ms. X] be successful on both of these issues, the parties have agreed that the Board should reserve its decision regarding the remedies that flow from the Board’s decision,” Smeenk wrote.
One of the undisputed facts of the case was that Ms. X began working at CWD around December 2013 and was promoted to Head Dental Hygienist in 2017. She started working at the clinic under terms and conditions that were agreed upon orally, and she later signed a written contract. The date and circumstances under which she signed that contract remain in dispute and were therefore part of the hearing.
Before addressing the first question — was Ms. X an employee or an independent contractor — Smeenk went over both the procedural history and witnesses that had come before the Board, and the question of credibility — of both Ms. X and Khan — in the assertions to the Board.
“While these basic facts are not in dispute, much of the evidence is. While it is not surprising that there would be factual disputes about allegations of bullying or other kinds of mistreatment, there is a surprising degree of dispute here even about the working arrangements and how CWD was managed. The evidence of [Ms. X] and Dr. Khan are in direct conflict, to a greater or lesser degree, on most issues. This necessitates assessments of their credibility,” Smeenk wrote in his decision.
“Unfortunately, I found both of the main protagonists, [Ms. X] and Dr. Khan, lacking in credibility… Suffice it to say here that I have concluded that Dr. Khan said several things that were clearly untrue about certain events and certain communications with his staff,” the vice chair continued.
“In other respects, he had a very selective memory or exaggerated immensely. In his previous career in as a Captain in the Canadian Armed Forces, he was the subject of a decision of a Court Martial in 2004 regarding an act of dishonesty. He had falsified a signature in a declaration, in order to provide dentures to an acquaintance who was not entitled to them. He pleaded guilty and was sentenced. [Ms. X] also had a strong tendency to exaggerate and embellish the facts. She did so throughout her testimony and not just about the alleged bullying.”
Fortunately, Smeenk noted, the witnesses brought in by both sides of the case were deemed credible and were helpful in corroborating some of both parties’ assertions and allegations.
It should be noted that there have been at least 12 applications, requests for consideration, review requests, etc. filed with the OLRB on this dispute since it was first brought before the Board.
It should also be noted that, at the time Ms. X and CWD ceased their working agreement, Ms. X’s husband worked at CWD as a dentist and was a good friend of Khan’s.
Taking into consideration the case law brought forward by both sides, Smeenk pointed to the decision of the Ontario Labour Relations Board in In Comstock Canada Ltd., 2004, in which the Board summarized its “approach for assessing the credibility of witnesses” as follows:
“In assessing the credibility of the witnesses, the Board has considered the usual testimonial factors: the clarity of the testimony; the consistency of the testimony; the demeanour of the witness; and the ability of the witness to testify truthfully and avoid the tug of self-interest. The Board has also heeded the judicial injunction in Faryna v. Chorny, [citation omitted] to examine the testimony to determine whether it is in ‘harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.’” (Bold lettering added by Smeenk for emphasis.)
Throughout the previous hearings, the Board heard from several witnesses on both sides, including current and former CWD employees and dental hygienists, information technology contractors, and the dental practice’s coordinator/receptionist. Smeenk noted for the record there were some people he did not hear from as witnesses, which “will have some bearing on my evaluation of the evidence.” Those people included:
- Dr. X (dentist at CWD and Ms. X’s husband)
- Ms. Alla Allan (Chief Operating Officer at CWD and one of two superiors that were subjects of Ms. X’s complaints, the other being Khan)
- No dental hygienists on behalf of CWD (though dental hygienists spoke on Ms. X’s behalf)
Further complicating the case — and of note for the record, in Smeenk’s opinion — was the fact that, over the course of the hearing previously, the Board “was compelled to issue interim decisions dated September 16 and 23, 2022. These dealt with Dr. Khan’s communications with two of [Ms. X]’s witnesses.”
Khan had admitted to contacting one of the dental hygienists who testified on Ms. X’s behalf by phone/text messages while she was giving evidence during the September 9 hearing and afterwards. “[That dental hygienist] was very upset and in tears after having looked at the first messages during a break in the hearing,” Smeenk noted.
“Dr. Khan also admitted to sending a text message to [the other dental hygienist who testified on Ms. X’s behalf] on May 13, 2022.”
The resulting decision of the Board, issued on September 23, 2022, stated that since Khan had admitted to communicating with the hygienists and had agreed to cease such communication, “it is not necessary to hear evidence or further arguments on that issue… Dr. Khan implicitly acknowledges through counsel that the communications were improper. An order prohibiting any further communication with witnesses or potential witnesses will be issued as set forth below.” That order remains in place, Smeenk noted.
Status of employment
In weighing his decision concerning Ms. X’s employment status (under the Act) at CWD, Smeenk noted a number of key terms in the contract Ms. X signed. That contract specifically stated, “At no time shall the Associate be construed or deemed to be an employee of the Principal, the relationship between the Principal and the Associate being that of principal and associate with the Associate as a self-employed independent contractor.” (Bold lettering added by Smeenk for emphasis.)
Ms. X did not deny this; however, she raised the question of the circumstances under which the contract was signed.
Both sides proposed multiple case law examples to support their assertions regarding the employment status of Ms. X under the Act — in total, over 15 cases. In his decision, Smeenk referred to seven of those cases, with an emphasis on McCormick v. Fasken Martineau DuMoulin LLP, 2004, quoting that decision:
“There is no universal test to determine whether a person is an employee or an independent contractor… The central question is whether the person… is performing [services] as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks… The above factors constitute a non-exhaustive list, and there is no set formula as to their application[; it] will depend on the particular facts and circumstances of the case.”
“I will accordingly consider the various factors typically used to consider the employee vs. independent contractor status issue to determine the extent to which they illuminate the essential character of [Ms. X]’s relationship with CWD and the extent of underlying control and dependency. The key is the degree of control… the extent to which [Ms. X] was subject and subordinate to someone else’s decision-making over her working conditions and remuneration,” Smeenk began in making his decision on this question.
Documents from the hearing detail the contract Ms. X signed. “CWD deployed a varying number of Dental Hygienists from time to time. At some point, CWD began demanding that they all sign the same form of contract as had [Ms. X],” the documents read, noting that, after 2017, all the hygienists had signed said contract apart from one, who was one of the dental hygienists Ms. X brought to the hearing as a witness regarding the conditions under which the contract was signed.
Noting that both parties could not agree on when the contract was signed, as well as the fact that “one clause [of the contract] expressly states the mutual intention that [Ms. X] would be an independent contractor. There are, however, several other clauses that point in the opposite direction,” Smeenk pointed to the fact that a number of those who refused to sign the contract were no longer employed though CWD.
“[Ms. X] further testified that the presentation of these contracts to all of the Dental Hygienists at CWD was ‘a major event,’ which was discussed among the Hygienists. It led to several of them leaving CWD… She also gave evidence that the introduction of this contract changed her pay structure from strictly hourly to percentage-based, a change which she notes from her records took place starting in 2017,” Smeenk stated, noting that one witness, another dental hygienist, had corroborated much of Ms. X’s evidence and had been terminated “within weeks” after she herself refused to sign the contract in question.
On that matter of the contract the Ms. X signed, Smeenk stated that, “the evidence… leads me to conclude that Ms. [X] signed the contract in late 2016, not on July 1, 2014 as testified by Dr. Khan. It also leads me to conclude that it was not entered into freely and voluntarily. Contrary to what is stated in paragraph 30 of the contract, it was not entered into after Ms. [X] received independent legal advice. Nor did she have an opportunity to read and fully understand it before executing it.”
With regard to Ms. X’s employment status, Smeenk also considered:
- Income tax treatment and returns
- The tools, equipment, and premises related to Ms. X’s work at CWD
- The level of direction and control exercised over Ms. X
- The CWD Staff Manual and customer service rules
- Outside referrals (contract work outside CWD)
- Staff meetings (and the mandatory/non-mandatory nature of them)
- The scheduling of work hours and patients
- CWD uniforms and name tags
- Method of compensation
- The opportunity for Ms. X to profit
Decision on status of employment
“After weighing all of the evidence based on the relevant factors, I have concluded that the balance of the scale tips heavily in favour of Ms. [X] being considered an employee who is covered by the Act, and not an independent contractor,” Smeenk began in his conclusion on the status of Ms. X’s employment with CWD.
“As submitted by CWD, the onus is on the applicant in a case brought under section 116 of the Act. The applicant has the onus of proving that the ESO’s order should be amended or rescinded,” he concluded.
“I am satisfied that Ms. [X] has met that onus, regarding her status as an employee for purposes of the Act.”
“Ms. [X] alleges that she was constructively dismissed by CWD because the workplace had become toxic and unbearable. This was because, she alleges (to describe the allegations broadly), she and the other Dental Hygienists had been ‘micromanaged’ for years by Dr. Khan and Ms. Allan; and she had been subjected to bullying, disrespectful and verbally abusive behaviour by Dr. Khan,” Smeenk wrote.
“This built up until it became intolerable and included reprisals for having voluntarily been tested for COVID-19. When she submitted her letter of resignation and tried to explain her reasons for quitting, she alleges that his response was so vile and angry that it traumatized her and she had to leave.”
The legal framework for the decision on this matter, Smeenk noted, is laid out in the Act: Sect. 56(1)(b) is the “controlling provision.” It states:
“An employer terminates the employment of an employee for purposes of section 54 if… the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period.”
Again, Ms. X and CWD cited multiple items of case law and Labour Board decisions in fighting their side of the case. After weighing those, Smeenk went over the “evidence and findings of fact” in relation to a number of items. Those included:
- The toxic work environment and micromanagement allegations
- Alleged comments about former employees and patients
- Inappropriate jokes and sexual comments
- Incidents related to COVID-19
- The resignation meeting
Toxic work environment and micromanagement
With regard to toxic work environment and micromanagement allegations, Smeenk noted that Ms. X alleged that the work environment was toxic due to Khan and Allan’s bullying management style. Ms. X characterized Allan as “controlling and domineering.” She testified that she “felt smothered by Dr. Khan’s rules, policies and repetitive directions,” and that he micromanaged the dental hygienists. Ms. X also stated that, when she requested more time off for vacations, Khan responded that he could find other hygienists to fill her chair.
“Weighing all of the evidence, I find that Dr. Khan managed the Dental Hygienists in a controlling and domineering fashion. He sometimes embarrassed them at Staff Meetings when criticizing their work or their billing or charting practices. He was a harsh critic. But prior to [Ms. X]’s resignation, he did not yell at her, use profanities or ridicule her work in the presence of others,” Smeenk wrote in his findings, also noting that he found Ms. X was “monitored” by Allan, but not bullied by her.
Comments about former employees and patients
With regard to the alleged comments about former employees and patients, Smeenk noted that Ms. X gave evidence that Khan had made critical or derisive comments about former employees and their families. He detailed that Ms. X stated she felt comments Khan had made in her presence made her feel that he would speak negatively and abusively about anyone who left the dental clinic. She testified that some of Khan’s comments made her feel “uncomfortable and disgusted.” Witness who spoke on behalf of Ms. X — both dental hygienists — corroborated Ms. X’s evidence, Smeenk found, with one witness recalling Khan repeatedly referring to a former employee as “a bitch” and “lazy.” Khan denied these allegations; however, Smeenk found credibility in the corroborated evidence presented.
“I therefore find that Dr. Khan from time to time made insulting and derisive comments about a number of departed employees… I note, however, that Ms. [X] did not complain about such alleged remarks. And she kept working at CWD for several years thereafter.”
Smeenk rejected Ms. X’s allegations about Khan making inappropriate remarks concerning patients, and he noted that Ms. X did not suggest the alleged remarks were aimed at her or intended to make her uncomfortable.
Inappropriate jokes and sexual comments
With regard to the allegations of inappropriate jokes and sexual comments, Smeenk summarized the allegations made by Ms. X, which Kingstonist has condensed as the following:
- From December 2013 to October 2020, Khan frequently made inappropriate jokes and comments of a sexual nature, usually in the lunchroom.
- In 2018, Khan showed Ms. X a photo of himself with a zucchini in from of his clothed groin area and asked her what she thought of it.
- Khan sometimes showed Ms. X pictures from a “People of Walmart” page online, some of which included sexually explicit images of “wardrobe malfunctions.”
- In September 2020, Khan recited a sexually suggestive “nursery rhyme.”
- “Dr. Khan frequently commented about news stories regarding women coming forward with claims of sexual abuse, saying very negative things about the women. He made these comments in relation to news stories about Bill Cosby, Jeffrey Epstein, Jian Ghomeshi and Harvey Weinstein, among others.”
- “Dr. Khan made comments about claims of sexual abuse in the military that were reported in the media, deriding the female complainants.”
- Khan made comments to male patients that were sexual in nature, “such as telling stories about a friend’s sex life” in the operatory.
- At a meeting with an entirely female staff group, Khan commented about proper clothing regarding jeans and black pants being “not too tight” and commented, “How to tell if your pants are too tight… Your male patient will let you know by expressing his instant desire to go camping.”
“Although she found these kinds of sexual comments inappropriate and disgusting, [Ms. X] did not speak up about it because she was afraid of the backlash she would face,” Smeenk noted Ms. X had asserted.
In his findings, Smeenk noted that Khan “denied ever engaging in inappropriate discussions in the workplace of a sexual nature. He stated that he always keeps his comments respectful and professional.” Smeenk also noted that the accusations regarding inappropriate comments in the lunchroom were not corroborated; however, a witness did state that Khan “discussed the Ghomeshi trial repeatedly” and remarked how Ghomeshi could not be found guilty. He continued making these comments even though the witness hygienist became upset, until she said she did not want to discuss the trial any more and left the room.
Smeenk found that, since another hygienist gave evidence similar to that of Ms. X, Khan had such discussions with several hygienists. However, he gave much weight to the fact that Ms. X did not complain about these incidents, despite being friends with some of the staff, and that she did not make official complaints through CWD’s Anti-Harassment Policy.
Smeenk then moved on to what he referred to as “the most disturbing of Ms. [X]’s allegations,” those being inappropriate sexual comments related to Ms. X’s children.
In her statements to the Board, Ms. X gave the following evidence:
“Dr. Khan also made inappropriate comments about my children. In July 2020, I was having a conversation with Dr. Khan in the lunchroom and he asked me where my children went to school. I told him that my children were attending a Catholic school. Dr. Khan responded by saying ‘you do know that your son is taking it up the ass at school from his teacher?’ and went on to state that he would never permit his children to attend a Catholic school because he ‘didn’t want his daughter on her knees, practicing blowjobs on the teacher.’ I was shocked and I left the lunchroom immediately.”
“In August 2020, I was in the lunchroom talking with Dr. Khan and the topic of schools came up again. Dr. Khan began talking about Catholic school teachers ‘fucking students up the ass.’ I do not remember exactly what could have prompted this comment, but I remember that it was said because it was shocking and disgusting. I asked Dr. Khan to stop and left the room.”
Ms. X told the board these comments made her “especially disturbed” and “physically sick to my stomach.”
“Despite that and even though these comments were related to her children,” Smeenk noted, “there is no evidence that she reported them to her husband, Dr. X, even though he worked at CWD as well.”
Pointing out that Dr. X had not testified and that there was no evidence Ms. X had told her husband about these comments, “The lack of any evidence about any such conversation between Ms. [X] and her husband adds to my doubts about her evidence,” Smeenk wrote in his findings.
For his part, Khan stated in his Will Say Statement that he “never engaged in “inappropriate discussions in the workplace of a sexual nature. This includes any comments regarding Ms. [X] and her family.” On cross-examination he testified he never discussed with Ms. X where her children went to school and that he never engaged in any sexual banter with any of the hygienists.
However, one of the witness dental hygienists testified that “on several occasions Dr. Khan would discuss his feelings about Catholics, including that there are a lot of pedophiles in the Catholic church. He expressed distrust about Catholic schools and would say words to the effect of Catholic school teachers being ‘a bunch of perverts.’”
Finding that the witness hygienist had no personal interest in the case and therefore no reason to fabricate such evidence, Smeenk accepted her evidence.
“I find that Dr. Khan repeatedly made comments about people in the Catholic Church, Catholic schools and Catholic teachers in the manner described by [the witness hygienist]. It is reasonable to infer from the combined evidence of [the witness hygienist] and [Ms. X], that he repeatedly made such comments to various Hygienists, including [Ms. X]. Further, having regard for Dr. Khan’s friendship with [Ms. X]’s husband and long working relationship with both Dr. [X] and Ms. [X], I accept her evidence that Dr. Khan knew that her children attended a Catholic school,” Smeenk decided.
With regard to the incidents related to COVID-19, Smeenk outlined that this set of allegations related to Khan’s treatment of Ms. X and other staff in relation to how the dental clinic needed to handle the pandemic. Ms. X stated that Khan “ranted” that it was a “government conspiracy,” and that he objected to the restrictions put in place by the College of Dental Hygienists of Ontario (CDHO). When hygienists were permitted to return to work by the CDHO, Ms. X testified, she told Khan some of the hygienists at CWD were reluctant — to which Khan responded, “Anyone who does not want to come back to work immediately will be replaced.” As a result, Ms. X testified, she returned to work on the first possible day, fearing she would otherwise lose her employment.
Further, Ms. X asserted that, after another employee at CWD tested positive for COVID-19, she was told by Khan not to get tested because he was concerned about CWD’s reputation being harmed “if it got out.” Ms. X testified she got tested anyway and tested negative. When she was next at work, Khan approached her in the lunchroom and asked another employee to leave. According to Ms. X, Khan sat across from her and asked twice, “What is your definition of loyalty?” Ms. X stated that Khan stared at her for at least 10 seconds, then asked, “What is your definition of trust?” before staring at her more. When she asked what the questioning was about, Khan didn’t answer, Ms. X said.
Ms. X testified that this made her extremely uncomfortable, that Khan was angry and intimidating, and that this was the turning point in her relationship with Khan and Allan. Allan, Ms. X alleged, became cold and removed patients from Ms. X’s schedule, and Khan began ignoring her.
This evidence, Smeenk found, was corroborated by witness testimony, which referenced Khan being upset that Ms. X and others were being voluntarily tested for COVID-19, as well as two messages Khan sent to an online group chat of CWD staff. The witness hygienist said she had no doubt the messages were related to employees getting tested, and produced copies of the two messages, which read:
“I hope that people understand why we need such drastic measures. We need to maintain an ability to stay open so that we can provide care for our patients. We work as a team, there is no ‘I’ in team. Everyone’s job is dependent upon others in Camelot to play the game. Ask yourself what LOYALTY and TRUST mean to you. I’m hoping that the English language means something to everyone reading this.”
“Disloyalty, Dishonesty and Defiance will no longer be tolerated! I think I’ve made myself crystal clear!”
On this matter, Khan agreed that he discussed his perspectives on the pandemic with the CWD staff, that it put immense pressure on his industry, and that he was eager to have the hygienists return to work. Smeenk noted that Khan had stated, however, “I always made it abundantly clear at all times that independent contractors had the freedom to decide not to return if they had concerns about their safety. At no point did I encourage [them] to take any risks with respect to COVID-19 that made them uncomfortable.”
While Khan agreed he sent the first of the two messages in the group chat, he claimed the second message was sent to the group accidentally and had actually been intended for a fellow member of the military reserve about military matters; it had nothing to do with CWD work, he said.
“I reject Dr. Khan’s denial and explanation of the second message,” Smeenk wrote in his decision. “Nothing in it indicates it is about military matters. It is very consistent with the other message he admits sending to the CWD group. I conclude that both messages were intended for the CWD professionals, to pressure them to attend work as much as possible and to avoid voluntary testing.”
“I also find as a fact that, from the time that Ms. [X] underwent voluntary COVID testing in early June, 2020, it soured her relationship with both Dr. Khan and Ms. Allan,” Smeenk wrote, noting that he accepted Ms. X’s evidence that Allan became cold to her and removed patients from Ms. X’s schedule in reprisal for her voluntary COVID-19 testing.
Smeenk wrote, “As noted, [Ms. X] was not cross-examined on this evidence. Ms. Allan did not testify to rebut it. I am prepared to draw an adverse inference from that. I therefore find that Ms. [X]’s insistence on being voluntarily tested for COVID after a colleague had tested positive resulted in her being ostracized by both Dr. Khan and Ms. Allan. She was also penalized by way of the re-assignment of some of her patients to others starting in June 2020. The extent and duration of such re-assignments is unclear.”
Finally, with regard to Ms. X’s resignation meeting, Smeenk outlined that Ms. X gave evidence that she’d gone into Khan’s office and handed him a letter, which read, “I am unable to continue working in my current environment, and feel it is time to move on to other opportunities better suited for me.”
Ms. X stated that Khan then read the letter, ripped it down the middle, and threw it on the floor. According to Ms. X, he told her she was not leaving and was obligated to her patients; she further alleged that Khan said he would charge her with “reckless abandonment.” When she tried to explain why she was no longer capable of working at CWD, Khan said that, in that case, she would not work anywhere and he would report her to the CDHO, Ms. X stated.
Ms. X also stated that Khan yelled at her with profanities and told her to get out within five minutes.
“When she tried to explain that she could no longer bear Dr. Khan’s sexual comments because she had herself been a victim of abuse as a child, she testified that Dr. Khan said, ‘Everyone’s been molested. Get over it,’ and then started to recount his own story of being molested by a priest. She begged him to stop and ran out of the office. She then spoke with her husband, who was in the process of treating a patient, who told her to go home. She says she left while crying in front of her co-workers,” Smeenk detailed.
The vice chair noted that no witnesses gave evidence to corroborate Ms. X’s version of the events that day. Khan denied making the comments Ms. X asserted he said, as well as tearing up her resignation letter. He testified, Smeenk wrote, that no one complained about yelling or a disturbance at the time of his meeting with Ms. X, and that he was surprised and disappointed by Ms. X’s resignation, but remained in control of himself. He also said he did not threaten to report Ms. X to the CDHO. However, Smeenk pointed out, Khan’s pleadings filed with the Board stated, “… upon Ms. [X] advising of a health crisis as the reason for her early breach of contract it was noted by Dr. Khan that a file might be required to be sent to The College of Dental Hygienists of Ontario as it is required to list any issues of concern of a regulated health care professional governed by this body.”
In cross examination, Khan stepped back those comments, saying he did not intend to file anything with the CDHO in writing. He admitted to discussing Ms. X’s mental state during the resignation meeting and discussing how, if her mental state was affecting her work, she should not be working.
Noting Ms. X’s “penchant for exaggeration,” Smeenk said he was unable to wholly accept her evidence regarding the meeting.
“But I also cannot wholly accept that of Dr. Khan, especially given the contradictions in his evidence and pleadings. Having regard for Dr. Khan’s admission that he was surprised and disappointed, and his generally domineering approach towards CWD’s Hygienists, it is reasonable to conclude that he responded in an emotional and angry manner after he read the resignation letter. He likely raised his voice. He certainly discussed Ms. [X]’s state of mental health. I accept that he discussed that if her mental health did not permit her to work at CWD, it would also not permit her to work elsewhere as a hygienist,” Smeenk wrote of his findings.
“This would have been consistent with his prior attitude towards departures of Hygienists. There is, however, no credible evidence to support the allegations of using profanities, tearing up the letter or telling Ms. [X] to get out within five minutes. Nor is there credible evidence to support the allegations about them both discussing their childhood sexual abuses. That said, I find that Ms. [X] did leave quickly and was distraught when she left.”
After analyzing his findings against case law regarding constructive dismissal, Smeenk concluded that, while much of Ms. X’s evidence did not help in determining a decision of whether she was constructively dismissed, some of her evidence — as well as the corroborating information from witnesses and information obtained on and through Khan — made the decision clear to him.
Decision on constructive dismissal
“Regarding the second issue, while rejecting a number of her claims as unproven, there is sufficient, credible evidence to conclude that Ms. [X] was constructively dismissed,” Smeenk said in his decision.
“In summary, I am satisfied that the combination of Dr. Khan’s repeated comments about Catholic schools and their teachers, knowing that Ms. [X]’s children attended such a school, together with his highly charged accusation that Ms. [X] had been disloyal by getting tested for COVID after her co-worker had tested positive, and then ostracizing and penalizing her, made it untenable on an objective basis for Ms. [X] to remain an employee of CWD,” Smeenk continued.
“She was, in effect, being told to choose between her own and her family’s health and safety and her job…I have concluded that CWD’s conduct passed so far beyond the bounds of reasonableness that Ms. [X] reasonably found continued employment to be intolerable.”
Therefore, Smeenk ruled, Ms. X’s application was allowed, and CWD was directed to pay to the Director of Employment Standards in trust on behalf of Ms. X all of her entitlements under the Employment Standards Act. No monetary value for this was indicated in the Board’s documents.
Update (Friday, Aug. 4, 2023 at 2:55 p.m.):
Since this article was published on August 1, 2023, further documents from the Ontario Labour Relations Board (OLRB) have become available, and indicate that this matter is far from over.
In his decision on June 19, 2023, OLRB Vice Chair Brian Smeenk allowed the application of a former employee at Cataraqui Woods Dentistry (Ms. X) to review — and perhaps overturn — an Employment Standards Officer (ESO)’s refusal to issue Cataraqui Woods Dentistry (CWD) an Order to Pay. This matter related to Ms. X no longer working at CWD, and asserting she was, infact, an employee of the clinic — not an independent contractor — and, further, that she was “constructively dismissed” in that she felt forced to leave her employment with CDW due to the “toxic environment” of the workplace. Smeenk found that Ms. X was, indeed, an employee at CDW, and that she was constructively dismissed due to a litany of issues (as outlined above).
The new OLRB documents show that CDW is appealing Smeenk’s findings.
Following Smeenk’s decision, the Board retained jurisdiction to deal with any disputes regarding Ms. X’s entitlements, or any other issue relating the remedies stemming fomr the decision.
“In the event the parties are unable to reach agreement in this regard, they were directed to make written submissions within 30 days of the date of the Decision,” the decision stated.
And that’s precisely what happened when, on July 10, 2023, counsel for CDW informed the Board of Khan and CWD’s intention to request the Board reconsider the decision. That request was filed on July 18, according to Board documents.
“Counsel further advised that the parties mutually request that the timeline for written submissions on damages be suspended, pending the outcome of the request for reconsideration,” Smeenk wrote in the most recent filing with the Board regarding Khan and CWD’s request for reconsideration, dated July 18, 2023.
“The parties mutually request that, in the event the request for reconsideration is unsuccessful, a fresh 15 days from the date of the reconsideration decision be provided for the parties to reach agreement or make submissions.”
Given the mutual nature of the request, Smeenk ordered, on behalf of the Board, that “the 30 day time limit for making submissions regarding remedies, as set forth in the final paragraph of the Decision is hereby suspended pending the determination of CWD’s request for reconsideration.”
“Should damages be owing following the determination of the request for reconsideration,” Smeenk concluded, “the parties shall have 15 days from the date of that decision to reach agreement or, failing agreement, make submissions to the Board regarding Ms. [X]’s entitlements or any other issue related to the remedies that flow from the Decision.”
This is now a developing story once again. Kingstonist will continue to monitor this matter and provide updated coverage as more information becomes available.