Aylsworth v. The Law Office of Harvey Storm, 2016 ONSC 3938

CITATION: Aylsworth v. The Law Office of Harvey Storm, 2016 ONSC 3938

DIVISIONAL COURT FILE NO.: 584-15

DATE: 20160613

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

McLEAN, DAMBROT, and PATTILLO JJ.

BETWEEN:

Lynne Aylsworth Respondent/Plaintiff

– and –

The Law Office of Harvey Storm Appellant/Defendant

Lia Moody, for the Respondent/Plaintiff

Kyle Armagon, for the Appellant/Defendant

HEARD at Toronto: June 13, 2016

L.A. PATTILLO (ORALLY)

1The Appellant, The Law Office of Harvey Storm, appeals the summary judgment of Dunphy J. (the "Motion Judge") dated October 8, 2015 awarding the Respondent, Lynne Aylsworth, damages of $32,500 (less statutory deductions) for wrongful dismissal.

2The sole issue before the Motion Judge was mitigation. The Motion Judge stated it as follows: "whether the plaintiff (Respondent) acted reasonably in declining to accept an offer of employment extended to her shortly before her working notice expired."

3The Appellant was a sole practitioner concentrating on real estate. The Respondent worked for the Appellant for over 15 years as his legal assistant. Approaching retirement, the Appellant negotiated the merger of his practice with Real Estate Lawyers.ca LLP ("REL"), a real estate law firm that operates out of multiple locations.

4As a result, the Appellant gave the Respondent working notice of termination of employment on April 25, 2014 effective September 1, 2014.

5On July 8, 2014, REL made the Respondent a written offer of employment as a real estate clerk and receptionist. While some of the terms of the offer were similar to her employment with the Appellant, including salary, there were some differences, including that she was being asked to sign a written agreement; she would not be entitled to a vacation in the summer months which she had previously taken every year with her family; sick days were treated as vacation days; there was an initial probation period of employment; the employee’s duties appeared greater than with the Appellant; and severance was fixed to statutory minimums.

6The Respondent requested time to consider and speak to her lawyer. As her lawyer was on vacation, she was not able to respond as quickly as REL wished. On July 21, 2014, the Respondent responded to REL by email proposing a $9,000 increase in salary and requesting that she be permitted to take two weeks' vacation in the summer. She also asked some questions arising from the offer.

7One hour later, REL advised the Respondent that it would be contacting other candidates.

8The Appellant raises two issues on this appeal. It submits:

1. The Motion Judge erred in determining by issue by summary judgment; and

2. The Motion Judge erred in finding that it had failed to discharge its onus of showing that the Respondent did not reasonably mitigate her damages.

Standard of Review

9The standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law it is correctness; on findings of fact it is palpable and overriding error and on mixed fact and law, it is either correctness or palpable and overriding error depending on whether an error of law is extricable from the findings of fact.

Summary Judgment

10Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 established that on a motion for summary judgment under Rule 20.04 of our Rules of Civil Procedure, the motion judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him without using the new fact finding powers in R. 20.04(2.1). There will be no genuine issue for trial if the evidence before the motion judge enables the dispute to be determined fairly and justly and in a timely, affordable and proportionate manner. If there is a genuine issue requiring a trial, the motion judge should then determine whether the need for a trial can be avoided by using the new fact finding powers (para. 66).

11In determining whether the issue before him could be resolved on a summary judgment motion, the Motion Judge referred to the procedure in Hryniak and particularly the principal of proportionality. He concluded, given that the facts before him were "largely undisputed” that the sole issue was one of mitigation, there was no genuine issue for trial. The issues could be resolved without a trial and that requiring a trial on so narrow an issue for such a modest amount in dispute would be a "miscarriage of justice."

12The Appellant submits that the Motion Judge erred in granting summary judgment in the face of credibility issues that could not be resolved using the fact finding tools in Rule 20.04(2.1) and, without the ability to cross-examine the Respondent thoroughly, wrongfully “extrapolated facts or inferences”. The Motion Judge found, correctly in our view, that there was only one issue (mitigation) and that the facts were largely undisputed. He was also very much aware of proportionality which is an important factor in this case.

13The Appellant has not demonstrated to us that there were any material credibility issues that would require a trial. Further, the submission that the Appellant was deprived of the right to cross-examine the Respondent has no force given that the Respondent was examined for discovery two weeks before the motion. Finally, we agree that there are factual grounds in the record to support the inferences that the Motion Judge drew.

14We therefore reject this ground of appeal. In our view, the Motion Judge was correct in dealing with the matter by way of summary judgment.

Mitigation

15The Motion Judge correctly stated the legal principles concerning mitigation as set out in Yiu v. Canada Kitchens Ltd. (ONSC). They are that: the burden to establish failure to mitigate is on the employer to discharge; the employer must show that the employee’s conduct was unreasonable in all respects; the employee is entitled to reasonable degree of latitude in considering the options; and the court must avoid hindsight and use common sense.

16In this case, the findings of fact by the Motion Judge included: REL’s offer was effectively “a take it or leave it offer”; the terms of REL’s offer were less favourable than the Respondent previously enjoyed; it was not unreasonable for the Respondent to raise questions about REL’s offer for clarification given that the terms were “significantly different in a negative way”; the questions raised were legitimate and the Respondent had a legitimate apprehension given the actions of REL in respect of the offer; collectively the different terms result in it being reasonable in raising her concerns; and the request for a higher salary was only one of the issues raised and even if it was unreasonable, that alone was not sufficient.

17The Appellant seeks to have us retry the issue of mitigation. That is not our role. The Motion Judge made clear findings of fact based on the record. Those facts support his findings. Further, the Motion Judge considered the Supreme Court of Canada decision in Evans v. Teamsters, Local 31, 2008 SCC 20, 2008 S.C.C. 20. He looked at the issue from an objective point of view and based on the facts concluded that the conditions of employment offered by REL were sufficiently different in a negative way to justify the Respondent raising questions for clarification and attempting to negotiate a raise to compensate for some of them.

18In our view, the Motion Judge made no palpable and overriding error in concluding that the Appellant did not meet its burden of establishing that the Respondent had failed to mitigate.

19Accordingly, for these reasons, the appeal is dismissed.

McLean, J

COSTS

20I have endorsed the appeal book as follows: “For oral reasons, the appeal is dismissed. Costs awarded to the respondent fixed on consent in the amount of $5,000.”

___________________________ L.A. PATTILLO, J.

McLEAN, J.