Court File No.

QVI(cr

ONTARIO
SUPERIOR COURT OF JUSTICE
B ET WE E N:

CHRISTOPHER JAMES KOZAK

Plaintiff
-

and

CANADIAN BROADCASTING CORPORATION

Defendant

STATEMENT OF CLAIM

TO THE DEFENDANT

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by

the plaintiff(s). The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario
lawyer acting for you must prepare a statement of defence in Form 18A prescribed by
the Rules of Civil Procedure, serve it on the plaintiff(s) lawyer,(s) or, where the
plaintiff(s) does not have a lawyer, serve it on the plaintiff(s), and file it, with proof of
service, in this court, WITHIN TWENTY DAYS after this statement of claim is served
on you, if you are served in Ontario.
If you are served in another province or territory of Canada, or in the
United States of America, the period for serving and filing your statement of defence
is forty days. If you are served outside Canada and the United States of America, the
period is sixty days.
Instead of serving and filing a statement of defence, you may serve and
file a notice of intent to defend in Form 18B prescribed by the Rules of Civil
Procedure. This will entitle you to ten more days within which to serve and file your
statement of defence.

IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE

GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO
YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY
LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A
LOCAL LEGAL AID OFFICE.
IF YOU PAY THE PLAINTIFFS CLAIM, and $5,000.00 for costs, within
the time for serving and filing your Statement of Defence, you may move to have this
proceeding dismissed by the court. If you believe the amount claimed for costs is
excessive, you may pay the plaintiffs claim and $400.00 for costs and have the costs
assessed by the court.
TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if
it has not been set down for trial or terminated by any means within five years after
the action was commenced unless otherwise ordered by the court.

Date: May

10

2016
Issued by:

U)
Local Registrar

Address of
Court Office: 393 University Avenue
1h
10
Floor
Toronto, Ontario
M5G 1E6

TO:

Canadian Broadcasting Corporation

205 Wellington Street West
Toronto, Ontario
M5V 3G7

CLAIM
THE PLAINTIFF CLAIMS:
(a)

$350,000 in damages for wrongful dismissal, with reference to the

following losses over a period of reasonable notice:
a. Lost employment income, including commissions; and
b. Payment in lieu of health and all other benefits or perquisites.

(b)

$500,000 in aggravated or moral damages, or alternatively, damages for

the violation of the duty of good faith;

(c)

$250,000 in punitive damages;

(d)

Pre-judgment and post-judgment interest on all amounts found due and

owing to the Plaintiff pursuant to the Courts ofJustice Act, R.S.O. 1990, c.
C-43, as amended;

(e)

The costs of this action on a substantial indemnity basis together with

HST; and

(f)

Such further and other relief as counsel may advise and this Honourable
Court may deem just.

The Parties
2.

The Plaintiff, (Kozak), is an individual residing in the Greater Toronto Area, in

the Province of Ontario.

3.

The Defendant, Canadian Broadcasting Corporation (CBC), is a federally

incorporated company and is Canadas national public radio and television
broadcaster. CBC maintains an office in the City of Toronto in the Province of
Ontario. CBC conducts business throughout the Province of Ontario and Canada.

Kozaks Employment
4.

As set out in further detail below, Kozak was heavily recruited by CBC to resign
from his prior long-term employment and senior role at Kraft Canada.

5.

Kozak commenced employment with CBC on October 29, 2012 in the senior role
of Director of Sales, Olympics & Sports Partnerships.

6.

As a result of Kozaks strong performance as a Director, he was promoted to the

position of Senior Director, Marketing, effective July 4, 2014, reporting to the
General Manager and Chief Revenue Officer, Jean Mongeau (Mongeau).

7.

Kozaks role as Senior Director was both managerial and supervisory. Kozak was
part of the small leadership team of the entire Media Division at CBC and RadioCanada and he was described as a key member.

8.

Kozaks senior responsibilities included marketing, as well as B2B, Media

He managed a team of approximately 100
Creativity and Digital Media.
individuals.

9.

Kozak excelled in the execution of his duties and skillfully performed his job
functions. His performance appraisals were excellent.

Kozaks Compensation
10. In his senior role, Kozak was paid as follows:

(a)

Base salary in the amount of $191,900 per annum;

(b)

Commission payments amounting to approximately $75,000 per annum;

(c)

Comprehensive health benefits;

(d)

Pension contributions; and

(e)

$7,200 annual taxable car allowance.

11. Kozaks employment income in 2014 was $321,000 and in 2015 it was $303,000.

Kozak held a reasonable expectation of this continued level of compensation and

he pleads that he would continue to earn at least this amount moving forward,
but for his wrongful dismissal.
The Employment Terms
12. At all times, Kozak was employed pursuant to an employment agreement of

indefinite duration.
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13. At all times, it was a term of Kozaks employment, implied by the common law,

[hat CBC would treat Kozak fairly and in good faith.

14. It was also an important implied term of Kozaks employment that CBC would

protect him from bullying and harassment in the performance Of his job and that
it would not place him in a vulnerable position that would subject him to reprisal
or retaliation for reporting bullying and harassment.
15. As Canadas national broadcaster, CBC has a heightened obligation to protect all
of its employees, including Kozak, from bullying, harassment and reprisal.
16. CBCs heightened obligation to protect employees from bullying, harassment and
reprisal is also particularly relevant as a result of its actions following its
mishandling of the Jian Ghomeshi case and the ensuring workplace investigation
conducted by Janice Rubin, resulting in the Rubin Report. CBC published the
Rubin Report in or around April 2015 and publicly apologized to all of its
employees stating that they had a right to expect a higher standard, with respect
to harassment in the workplace.
17. The Rubin Report outlined six specific recommendations in order to ensure that

CBC meets its standard to protect employees from bullying and harassment.
These recommendations included creating procedures for reporting inappropriate
workplace behaviour and investigation of any complaints of inappropriate
behaviour.
18. CBC publicly adopted all of the recommendations from the Rubin Report.
19. CBC has either failed to implement the recommendations from the Rubin Report

or it pays only lip service to those recommendations. CBCs failure to properly

implement the recommendations from the Rubin Report, and eliminate bullying
and harassment in the workplace, represents an organizational failure and
constitutes a known harm to all of its employees, including but not limited to
Kozak.

Harassment and Complaints of Harassment

20. Commencing in late 2014, Mongeau began to harass, intimidate and bully Kozak.
Mongeaus behaviour towards Kozak included, but was not limited to:
(a) Speaking in a condescending manner towards Kozak;
(b) Utilizing unnecessary pressure tactics around work assignments, which
knowingly created additional stressors on Kozak;
(c) Forcing Kozak to be at his beckon call;
(d) Engaging in disrespectful conduct towards Kozak, including forcing him
to cancel meetings with others in order to meet with him and then
cancelling that meeting;
(e) Unjustly challenging and grilling Kozak at one on one meetings and
deliberately putting him on the defensive;
(f) Setting and maintaining unreasonable expectations;
(g) Emphasizing Kozaks losses and disregarding his wins;
(h) Unjustly criticising Kozak; and
(i) Deliberately micromanaging or over managing Kozak.
21. Mongeau knew that his conduct, especially at one on one meetings, was causing
Kozak extreme anxiety and distress. Mongeaus conduct caused Kozak to
experience episodes of extreme hyperhidrosis, which was visible to Mongeau.
22. When Mongeaus conduct led Kozak to experience episodes of extreme stress and
hyperhidrosis, he would take out a box of Kleenex and tell Kozak that he needed
it, which was both humiliating and particularly disrespectful.
23. Mongeau holds a key executive role at CBC and he is well connected to other
CBC executives. Mongeau was in a position to confer and or deny employment
benefits to Kozak and Kozak was vulnerable in his reporting relationship to
Mongeau.

24. Kozaks employment became intolerable as a result of Mongeaus behaviour

towards him. On February 18 and 19, 2015, Kozak complained to CBCs Chief
Business Officer, Mr. Neil McEneany, who directed Kozak to speak with
individuals in CBCs Human Resources Department.
25. On February 20, 2015, Kozak first complained to CBCs Human Resources
Department regarding Mongeaus behaviour towards him. Kozak spoke with Ms.
Julia Evans and Ms. Serena Thadani-Anthony, who was the acting Director of
Human Resources at CBC, and reported his concerns.
26. Kozak asked CBCs human resources representatives to provide him with
assistance and guidance to alleviate Mongeaus inappropriate treatment of him
and protect him from further bullying, harassment and or reprisal for
complaining.
27. Kozak was told in no uncertain terms that Mongeaus inappropriate behaviour

was well known throughout CBC and that CBC was working on it.
28. Kozak was also led to understand that CBCs Executive Vice President, Ms.
Heather Conway (Conway), was involved in attempting to remedy Mongeaus
behaviour and that she spoke with Mongeau about his conduct towards him.
29. Following Conways discussions with Mongeau, he apologized to Kozak about his
behaviour. Notwithstanding his apology, his behaviour did not change and CBC
did nothing further to prevent it, despite its organizational awareness of the
problem.
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30. In fact, CBC has received numerous other employee complains about Mongeau,
including many made at the time of exit interviews when others felt more
comfortable coming forward with concerns. As an organization, CBC was fully
aware that Mongeau may act inappropriately towards employees and in light of
this, it held an enhanced obligation to remedy the behaviour and not let it go
unchecked.
31. Despite being fully aware of Mongeaus treatment of Kozak and his general

disposition towards bullying and harassment, Kozak was not protected by CBC,
in violation of the key terms of his employment, CBCs stated mandate to protect
its employees from bullying and harassment, and the common law.

32. In particular, CBC knew or ought to have known that it was required to:

(a) Conduct a full and impartial investigation into Kozaks complaints;

(b) Put appropriate measures into place to protect Kozak from further
instances of harassment and bullying;
(c) Put appropriate measures in place to protect Kozak from reprisal or the
threat of reprisal; and
(d) Ensure that appropriate measures were taken to eliminate all forms of
bullying and harassment towards others, not just Kozak.
33. CBC held enhanced legal obligations towards Kozak given its organizational
understanding that Mongeau acted inappropriately towards Kozak and others.
34. CBC failed in its legal obligations towards Kozak and, in doing so, it permitted or

otherwise condoned Mongeaus actions towards him.

35. CBC further failed in its stated mandate pursuant to the recommendations
outlined in the Rubin Report.
36. As a result of CBCs organizational failure to protect Kozak from bullying and
harassment, Mongeaus inappropriate behaviour towards him escalated, as he
engaged in reprisal.
37. CBC made Mongeau aware of Kozaks complaints but failed or was otherwise

unable to put proper safeguards in place to prevent Mongeau from engaging in

reprisal against him for making those complaints.
38. As a result of CBCs failure to protect Kozak, he suffered from extreme anxiety,
stress and depression and he contracted Shingles. Kozak attributes contracting
Shingles directly with Mongeaus behaviour and CBCs inability to prevent it.
Termination of Employment and Reprisal
39. In April 2016, in yet another instance of bullying and harassment, Mongeau
forwarded an email that was written by Kozak to others, in a manner that
embarrassed Kozak in front of his team. As a result, Kozak again reported this
behaviour to CBCs Human Resources Department, who by this time, were well
aware of Kozaks concerns and complaints.
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40. In a discussion with Kozak in early April 2016, CBCs human resources
representatives validated his concerns regarding Mongeaus behaviour and the
most recent incident identified above.
41. However, instead of taking steps to protect Kozak from further bullying,

harassment or reprisal, CBCs human resources representatives told Kozak to

discuss the matter with Mongeau directly and that they would do the same.
42. CBCs human resources representatives spoke to Mongeau about Kozaks
complaints.
43. Kozak was next invited to a meeting to discuss his annual performance appraisal.
However, Kozak was ambushed and the meeting was instead to inform Kozak of
his termination.
44. Mongeau was present at the meeting and delivered the letter of termination to

Kozak. Mongeau told Kozak that its over. Mongeau was aggressive towards
Kozak and visibly angry.
45. CBCs behaviour in misleading Kozak at the time of his termination was

particularly humiliating and caused Kozak further stress and anxiety at a time
when he was otherwise vulnerable.
46. CBC also knew or ought to have known that having Mongeau carry out the
termination was inappropriate and harmful.
47. Kozak was told that his termination was due to restructuring. Kozak holds CBC

to the strict proof of this allegation and claims that it is merely a pretext. Rather,
Kozak was the only employee in the department that was terminated.
48. Further, CBC did not eliminate Kozaks role or senior responsibilities. It moved a
contractor into his position on a full-time basis.
49. Prior to Kozaks termination, his performance was excellent and, in fact, he was
specifically commended by CBC for an award it won as a result of his recent
efforts.

50. Kozak states, and the fact is, that his termination was directly in reprisal for his
complaints against Mongeau and that CBC was either unable to address
allegations of bullying and harassment in the workplace, or it chose to support a
senior leader who bullied him, rather than address those complaints.
Aggravated, Moral or Punitive Damages

51. CBC violated the implied terms of Kozaks employment and the common law as
follows:
(a) Terminating his employment in reprisal for complaints of bullying and
harassment;
(b) Failing to appropriately address allegations of workplace bullying and
harassment;
(c) Allowing Mongeaus behaviour towards Kozak to go unchecked despite
organizational awareness of a problem;
(d) Misleading Kozak at the time of his termination; and
(e) Failing to act in good faith towards Kozak.
52. CBCs actions as described above have caused and will continue to cause Kozak
considerable mental anguish and distress and an extended period of
unemployment.
53. CBCs actions merit an award of aggravated, moral damages or damages in order

to compensate Kozak for his mistreatment.

54. Additionally, Kozak is entitled to punitive damages to act as a deterrent against

such conduct in the future.

Inducement

55. Kozak was heavily recruited by CBC and in particular, its General Manager Mr.
Alan Dark, to leave his prior employment at Kraft Canada, where he was securely
employed for a continuous period of 8 years.

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56. Kozak knew Mr. Dark through his work at Kraft Canada and the level of
recruitment involved went beyond the normal persuasion involved in a hiring
process.
57. Kozak was reluctant toleave his secure employment and careertrajectory at Kraft

Canada but was induced by CBC through a significantly greater compensation

package, including a signing bonus, as well as, the opportunity to build an
international profile with Canadas national broadcaster, among other things.
58. But for CBCs inducements, Kozak would have remained employed at Kraft
Canada.
59. For the purpose of calculating his tenure with CBC, Kozak is entitled to credit for
time employed by Kraft Canada.
Pay in Lieu of Reasonable Notice

60. At the time of his termination, CBC failed or refused to provide Kozak with
reasonable notice of his termination or a payment in lieu thereof, with reference
to his total annual compensation.
61. Kozak is entitled to damages equal to 12 months payment in lieu of notice of his
termination, with reference to his total annual compensation package. In support
of this claim, Kozak relies on the following factors:
(a)

His nearly 4 years of employment with CBC and 8 years of employment

with Kraft Canada;

(b)

His senior leadership role;

(c)

The specialized nature of his work as well as that of his skills and training;

(d)

The lack of suitable alternate employment, and in particular, the difficulty

in replacing his role; and

(e)

Relevant precedents.

Costs

62. For the above reasons, Kozak pleads that this action be granted with costs
payable on a substantial indemnity basis.
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The Plaintiff proposes that this action be tried in the City of Toronto.

Dateoflssue:May

/0.

,2016

Whitten & Lublin

Employment Lawyers
141 Adelaide Street West
Suite 600
Toronto, ON M5H 3L5
Daniel A. Lublin
LSUC# 51549F

Tel: (416) 640-2667

Fax: (416) 644-5198

Lawyers for the Plaintiff

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