Citation and Court Information

CITATION: Elsegood v. Cambridge Spring Service, 2011 ONSC 534

DIVISIONAL COURT FILE NO.: DC-7-10

DATE: 2011-01-24

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Brian Elsegood, Applicant

AND: Cambridge Spring Service, 2001 Ltd., Defendant

BEFORE: The Honourable Mr. Justice M. D. Parayeski

COUNSEL: J. Sebastian Winny, for the appellant/defendant R. Konduros, for the respondent/plaintiff

HEARD: December 20, 2010

ENDORSEMENT

[1] This is an appeal by an employer in respect of a decision by Small Claims Court Deputy Judge Holub in favour of an employee. That Deputy Judge found that the employee had been effectively terminated by operation of section 57 (17) of the Employment Standards Act given the prolonged duration of layoff periods imposed by the employer. By operation of that Act, such a termination is deemed to have taken place at the start of the first layoff period in April of 2009.

[2] Deputy Judge Holub found as a fact that the defendant/employer did not give the plaintiff/employee a meaningful offer of return to work during the relevant time period. He did not believe much of the defence evidence in this regard. He was obviously in position to assess credibility, and I defer to him on this point.

[3] The thrust of the appellant’s main contention appears to be that the trial judge awarded damages for the termination using common law notions after having found that the termination had occurred on the basis of a strict reading of the Employment Standards Act. If I understand the appellant’s position, it is that in such a circumstance the trial judge ought to have restricted recovery to the “damages” set out in the Act. I say “appears” and “if I understand the appellant’s position” because its factum is one of the most obtuse documents I have ever read. Unfortunately, argument did not wholly redress this.

[4] I do not read the Act or the case law referred to me as restricting the calculation of damages in this fashion. Rather, the Act merely sets out the minimum to which an employer is exposed in the event of termination without adequate notice, and does not create a ceiling for damages in this field.

[5] The intent of the section of the Act used by the trial judge to find liability seems to be that of preventing an employer from using prolonged layoffs to avoid exposure to wrongful dismissal actions. While there is, of course, a body of common law that addresses layoffs and their effect, I do not accept the appellant’s notion that the trial judge should have ignored the Act in coming to his conclusion, and, instead, focused upon that body of law.

[6] I utterly reject the appellant’s argument that the respondent’s pleadings at trial did not precisely accord with the basis upon which the trial judge found liability. Flaws, or alleged flaws, in pleadings have not been fatal for several decades now. This is especially true in the Small Claims Court setting.

[7] The appellant points out that the trial judge did not address an issue of setoff when calculating the damages owed by the employer to the employee. The employee did admit to a $200.00 loan from the employer, which does not appear to have made its way into those calculations. It should have done. It also should have been pointed out to the trial judge more forcefully than it appears to have been by defence counsel at trial.

[8] The respondent has cross-appealed saying that the trial judge ought not to have deducted from the value of the six month period of notice he found appropriate the wages made by the employee during that period. This argument is without merit in my view, and is not supported by the case law cited by the respondent. It is not logically consistent to award damages for wrongful termination over a notional period of notice and, at the same time, ignore wages actually earned during that notional period.

[9] I dismiss the appeal and cross-appeal, except to the extent that I reduce the damages awarded by the $200.00 set-off for monies loaned by the employer to the employee.

[10] The appellant shall pay to the respondent his costs of the appeal hearing on the partial indemnity scale. Most of the hearing before me was spent on the appellant’s unsuccessful arguments, and hence this ruling on costs. If the parties are unable to agree upon the appropriate amount of those costs, they may make brief, written submissions of not more than 2 type-written pages each on or before February 28th, 2011. Any such submissions should be sent to the attention of Parayeski J. at Kitchener.

M. D. Parayeski J.

Date: January 24, 2011