CITATION: McLeod v. 1274458 Ontario Inc. o/a Frontier Sales Limited, 2018 ONSC 1866
DIVISIONAL COURT FILE NO.: 710/17 DATE: 20180319
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, SACHS and CORTHORN JJ.
BETWEEN:
KEITH MCLEOD
Stan Fainzilberg, for the Plaintiff (Respondent)
Plaintiff (Respondent)
– and –
1274458 ONTARIO INC. o/a FRONTIER SALES
Stephanie Pope and Meera Persaud, for the Defendant (Appellant)
Defendant (Appellant)
HEARD at Toronto: March 19, 2018
SWINTON J. (Orally)
[1] The Appellant, 1274458 Ontario Inc. o/a Frontier Sales, appeals the order of Hood J. dated June 29, 2017 granting summary judgment to the Respondent, Keith McLeod, in his action for wrongful dismissal.
[2] The Respondent was employed as a driver/mover by the Appellant for approximately 17 years. On January 31, 2016, the Appellant provided six months’ notice to all of its employees that it would be ceasing operations on July 31, 2016. At the time of the notice, the Respondent was on an unpaid leave of absence as a result of injuries sustained in a motor vehicle accident on September 18, 2015.
[3] The Respondent ultimately returned to work for a few hours at the end of July, 2016 just before the Appellant ceased operations.
[4] The motion judge found that the Respondent was entitled to 12 months’ pay in lieu of reasonable notice of termination. He awarded nine months’ salary and benefits, subject to deduction for amounts already paid, as the Respondent had commenced work with an another employer on October 31, 2016.
[5] The Appellant argues that the motion judge erred in two ways:
(1) First, he erred in failing to draw an adverse inference from the Respondent’s failure to provide adequate medical evidence to establish that the Respondent could not reasonably mitigate his damages due to his medical condition.
(2) Second, the motion judge erred by applying an incorrect legal standard on the Appellant with respect to establishing that the Respondent failed to take reasonable steps to mitigate.
[6] There is no merit to either ground of appeal.
[7] With respect to the first ground, the motion judge made no palpable and overriding error when he found that the Respondent’s medical condition was such that he could not be expected to undertake a serious job search until he was able to return to work on July 27, 2016. There was considerable medical evidence to support this finding, including the Functional Abilities Questionnaire provided by Dr. Marks on June 20, 2016. His covering letter set out the nature of the Respondent’s medical condition and the further treatment needed, and he specifically stated that the Respondent was unable to work until he received more treatment. The plan was for a reassessment in one month, which occurred, resulting in the Respondent’s return to part-time restricted duties on July 27, 2016.
[8] Further, the motion judge reasonably found on the evidence that the Appellant accepted the medical evidence provided by the Respondent. As found by the motion judge at para. 25 of his reasons, the Respondent was on an agreed medical leave of absence and “when asked for more medical information, [the Respondent] provided it. The information must have satisfied [the Appellant] each time it was provided because [the Appellant] chose not to terminate [the Respondent] for cause.”
[9] With respect to the second ground of appeal, the Appellant relied on Benjamin v. Cascades Canada ULC, 2017 ONSC 2583 to support a submission that the motion judge erred in law in applying too high an onus on the Appellant with respect to the duty to mitigate. In our view, the motion judge’s reasons disclose no such error.
[10] For the purpose of its argument, the Appellant focuses on para. 35 of the motion judge’s reasons, where he rejected the evidence of the Appellant led to meet its onus to establish that if the Respondent had taken reasonable steps, he could have obtained comparable employment. This evidence consisted of a printout from an on-line job search website dated January, 2017 (well after the period at issue in this litigation). In our view, the motion judge made no legal or factual error in giving this evidence little or no weight.
[11] For these reasons, the appeal is dismissed.
[12] I have endorsed the Appeal Book and Compendium of the Appellant as follows: “This appeal is dismissed for oral reasons delivered today. Costs to the Respondent fixed at $12,500 all inclusive, an amount agreed upon by the parties.”
___________________________ SWINTON J.
I agree
SACHS J.
I agree
CORTHORN J.
Date of Reasons for Judgment: March 19, 2018
Date of Release: March 20, 2018
CITATION: McLeod v. 1274458 Ontario Inc. o/a Frontier Sales Limited, 2018 ONSC 1866
DIVISIONAL COURT FILE NO.: 710/17 DATE: 20180319
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS and CORTHORN JJ.
BETWEEN:
KEITH MCLEOD
Plaintiff (Respondent)
– and –
1274458 ONTARIO INC. o/a FRONTIER SALES
Defendant (Appellant)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: March 19, 2018
Date of Release: March 20, 2018