Court File and Parties

COURT FILE NO.: CV-15-542678 DATE: 20160602 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHELLE SUMMERFIELD Plaintiff – and – STAPLES CANADA INC. Defendant

Counsel: David Ertl for the Plaintiff Samantha M. Crumb for the Defendant

HEARD: May 30, 2016

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] The Plaintiff Michelle Summerfield brings a summary judgment motion in a wrongful dismissal action against her former employer, Staples Canada Inc. (“Staples”). The parties agree that the case is suitable for a summary judgment.

[2] Ms. Summerfield, whose annual salary inclusive of benefits totalled $83,901.93; i.e., $6,991.83 per month, was terminated without cause after almost five years of employment. Upon her termination, she received five weeks of termination pay under the Employment Standards Act, 2000, S.O. 2000, c. 41, and five weeks of benefit continuation, for a total of $7,779.06.

[3] Ms. Summerfield, who has not yet been able to find a new job, claims that she ought to have received nine months’ compensation in lieu of notice. She, therefore, seeks a summary judgment of $55,147.41 (nine months x $6,991.83 per month - $7,779.06).

[4] For the reasons that follow, I award Ms. Summerfield $34,171.92 (six months x $6,991.83 per month - $7,779.06).

B. LEGAL BACKGROUND

[5] An employee who is dismissed without reasonable advance notice of termination is entitled to damages for breach of contract based on the employment income they would have earned during the reasonable notice period, less any amounts received in mitigation of the loss: Sylvester v. British Columbia, [1997] 2 S.C.R. 315.

[6] The purpose of requiring reasonable notice is to give the dismissed employee an opportunity to find other employment: McKay v. Camco, Inc., [1986] O.J. No. 2329 (C.A.) at para. 40; Morrison v. Abernathy School Board (1875-76), 3 S.C. (4th) 945 at p. 950.

[7] There is no catalogue as to what is reasonable notice in particular classes of cases, and the reasonableness of notice must be determined by reference to the facts of each particular case: Bardal v. Globe & Mail, [1960] O.J. No. 149 (H.C.J.).

[8] In determining the length of notice, the court should consider, among other possible factors: (1) the character of employment; (2) the length of service; (3) the age of the employee; and (4) the availability of similar employment having regard to the experience, training, and qualifications of the employee: Machinter v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Cronk v. Canadian General Insurance Co. (1995), 25 O.R. (3d) 505 (C.A.); Bardal v. Globe & Mail, supra.

[9] The factors are not exhaustive, and what is a reasonable notice period will depend on the circumstances of the particular case: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 at para. 83; Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.) at para. 66; Duynstee v. Sobeys Inc., 2013 ONSC 2050 at para. 17.

[10] The determination of a reasonable notice period is a principled art and not a mathematical science. In Minott v. O'Shanter Development Co., supra, Justice Laskin wrote at para. 62:

Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and ordinarily, there is no "right" figure for reasonable notice. Instead, most cases yield a range of reasonableness.

[11] In Cronk v. Canadian General Insurance Co., supra, Associate Chief Justice Morden stated at para. 85:

The governing rule is that a dismissed employee, in the position of Ms. Cronk, is entitled to reasonable notice or payment in lieu of it. The legal precept of reasonable notice, which is the essence of this rule, is a standard and not, itself, a rule. Unlike a rule, it does not specify any detailed definite state of facts which, if present, will inevitably entail a particular legal consequence. Rather, its application enables a court to take all of the circumstances of the case into account. It allows for individualization of application and, obviously, involves the exercise of judgment.

[12] Economic factors such as a downturn in the economy or in a particular industry or sector of the economy that indicate that an employee may have difficulty finding another position may justify a longer notice period: Bullen v. Proctor & Redfern Ltd., [1996] O.J. No. 340 (Gen. Div.) at paras. 24-29; Thomson v. Bechtel Canada, [1983] O.J. No. 2397 (H.C.J.); Corbin v. Standard Life Assurance, [1995] N.B.J. No. 461 (C.A.); Leduc v. Canadian Erectors Ltd., [1996] O.J. No. 897 (Gen. Div.) at paras. 34-36.

[13] The approach to determining a reasonable notice period is flexible, and each case will turn on its own particular facts. The weight to be given each factor will vary according to the circumstances of each case, and the judge in a wrongful dismissal case is required to exercise judgment in determining what factors are of particular importance. In determining the reasonable notice period, the court should not apply as a starting point any rule of thumb attribution so many weeks or months of notice per year of service, because such an approach privileges length of service above all relevant factors in determining notice, and each case must be considered having regard to its particular facts: Minott v. O'Shanter Development Co., supra; Beatty v. Best Theratronics Ltd., 2015 ONCA 247; Love v. Acuity Investment Management Inc., 2011 ONCA 130; Cowper v. Atomic Energy of Canada Ltd., [1999] O.J. No. 2021 (S.C.J.); Dey v. Valley Forest Products (1995), 162 N.B.R. (2d) 207 (C.A.) at p. 215.

[14] The character of employment factor tends to justify a longer notice period for senior management employees or highly skilled and specialized employees and a shorter period for lower rank or unspecialized employees: Cronk v. Canadian General Insurance Co., supra; Bullen v. Proctor & Redfern Ltd., supra, at paras. 7-10; Teitelbaum v. Global Travel Computer Holdings Ltd. (1999), 41 C.C.E.L. (2d) 275 (Ont. S.C.J.); Bernier v. Nygard International Partnership, 2013 ONSC 4578 at para. 57; Tull v. Norske Skog Canada Ltd., 2004 BCSC 1098.

[15] Generally speaking, the longer the duration of employment, the longer the reasonable notice period: Bullen v. Proctor & Redfern Ltd., supra, at para. 21.

[16] Generally speaking, a longer notice period will be justified for older long-term employees, who may be at a competitive disadvantage in securing new employment because of their age: McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at para. 92.

[17] Wrongful dismissal is a breach of contract claim, and the normal principles of damages assessment apply to the determination of the quantum of damages, including the principle that a plaintiff cannot recover for avoidable loss; i.e., the mitigation principle. See: Zaman v. Canac Kitchens Ltd., a division of Kohler Ltd., supra; British Westinghouse Electric & Mfg. Co. Ltd. v. Underground Electric R. Co. of London, Ltd., [1912] A.C 673 (H.L.); Karas v. Rowlett, [1944] S.C.R. 1; Apeco of Canada Ltd. v. Windmill Place, [1978] 2 S.C.R. 385.

[18] The so-called duty of a plaintiff to mitigate is somewhat mislabeled as a duty because the duty is a matter of self-interest and is not a duty owed to others. The policy idea behind the so-called duty to mitigate is that a plaintiff should not recover for losses that he or she could have avoided.

[19] It is a corollary to the mitigation principle that an innocent party must take into account the benefits received from actually mitigating his or her loss: Cockburn v. Trusts and Guarantee Co. (1917), 37 D.L.R. 701 (S.C.C.).

[20] The onus is on the defendant to establish a failure to mitigate: Michaels v. Red Deer College I, [1976] 2 S.C.R. 324; Dobson v. Winton & Robbins Ltd., [1959] S.C.R. 775. More particularly, the onus is on the employer to prove that the employee would likely have found a comparable position reasonably adapted to his or her abilities and that the employee failed to take reasonable steps to find that comparable position: Di Tomaso v. Crown Metal Packaging Canada LP, supra, at paras. 36-37; Palmer v. Clemco Industries Inc., 2010 BCSC 230; Link v. Venture Steel Inc., 2010 ONCA 144 at para. 73; H.A. Levitt, The Law of Dismissal in Canada, (3rd ed. loose-leaf) (Aurora: Canada Law Book, 2003) at p. 10-3; England, Wood, Christie, Employment Law in Canada, (4th ed., loose-leaf) (Markham: LexisNexis Canada Inc., 2005) at p. 16-89.

[21] In assessing the innocent party's efforts at mitigation, the courts are tolerant, and the innocent party need only be reasonable, not perfect: Banco de Portugal v. Waterlow & Sons Ltd., [1932] A.C. 452 (H.L.); Leduc v. Canadian Erectors Ltd., supra, at paras. 52-60.

[22] In Yiu v. Canac Kitchens Ltd., a division of Kohler Ltd. [2009] O.J. No. 871, Justice D.M. Brown stated at para. 16:

The onus an employer bears to demonstrate that the employee failed to mitigate is "by no means a light one... where a party already in breach of contract demands positive action from one who is often innocent of blame." Accordingly, an employer must establish that the employee failed to take reasonable steps and that had his job search been active, he would have been expected to have secured not just a position, but a comparable position reasonably adapted to his abilities. Link v. Venture Steel Inc., [2008] O.J. No. 4849, paras. 45 and 46. An employer must show that the plaintiff's conduct was unreasonable, not in one respect, but in all respects: Furuheim v. Bechtel Canada Ltd. (1990), 30 C.C.E.L. 146 (Ont. C.A.) para. 3.

C. FACTUAL BACKGROUND

[23] The only evidence on this motion is the affidavit evidence of Ms. Summerfield. She was not cross-examined.

[24] Ms. Summerfield began work at Staples on January 10, 2011. There was no written employment agreement. At the time of her dismissal, she was employed at Staples Head Office in Mississauga as an “Enterprise Account Manager,” which is a sales position - not a managerial one.

[25] Ms. Summerfield’s duties included: (a) selling office products, office supplies, office furniture, office equipment, and business technology to businesses including large multi-national corporations; (b) ensuring client satisfaction and managing important client relationships; and (c) completing paperwork and electronic transactions associated with product sales.

[26] Ms. Summerfield was terminated without cause on November 16, 2015. At the time of termination, she was 39 years old, and had worked for Staples for almost five years (i.e., 4 years, 10 months and 6 days).

[27] At the time of termination, Ms. Summerfield received her entitlements under the Employment Standards Act, 2000. She was also offered, on a without prejudice basis, a severance package, the terms of which were not disclosed to the court and which Ms. Summerfield rejected.

[28] Since her termination, Ms. Summerfield has searched for comparable replacement employment. Her job search has included: (a) networking with industry contacts and mentors; (b) attending at the Hire Canada spring job fair and training expo; (c) utilizing internet websites such as Monster, Indeed, LinkedIn, Workopolis, Service Canada, etc.; (d) searching employment agency websites; (e) searching directly on companies’ websites for job openings, and sending out resumes; and (f) participating in telephone and Skype-based preliminary interviews for specific positions (e.g. Metroland Media) and with recruiters (e.g. The Creative Group).

[29] As at March 30, 2016, Ms. Summerfield had applied for approximately 25 jobs. She had a few preliminary discussions with employers or recruiters, and several interviews, but she remains unemployed.

[30] I find as a fact that Ms. Summerfield made an exemplary effort to mitigate. She started almost immediately to search for a new job and she assiduously continued with that effort in an organized and diligent way. Staples failed to meet the onus of proving a failure to mitigate.

D. DISCUSSION AND ANALYSIS

[31] The only issue in the immediate case is the length of the reasonable notice period.

[32] Relying on the general principles of the Bardal v. Globe & Mail, supra, line of cases and specifically on: Phillips v. Hines Packaging (1994), 5 C.C.E.L. (2d) 105 (B.C.S.C.); Buchanan v RCA Inc. (1988), 12 ACWS (3d) 165 (B.C.S.C.) and Agostino v. Gary Bean Securities, 2013 ONSC 6918 as analogous cases, Staples argued that the reasonable notice period was three to five months.

[33] Relying on the general principles of the Bardal v. Globe & Mail, supra, line of cases and specifically on Ceci v. Comdisco Canada Ltd., [1994] B.C.J. No. 1788 (S.C.); Grace v. Reader’s Digest Assn. (Canada) Ltd., [1995] O.J. No. 2671 (Gen. Div.); Smith v. Western World Communications Corp., (1998), 167 Sask. R. 292 (Q.B.); Reilly v. Steelcase Canada Ltd. (1979), 26 O.R. (2d) 725 (H.C.J.); Leith v. Rosen Fuels Ltd., [1984] O.J. No. 1206 (H.C.J.); Wilden v. Stationers Warehousing Ltd., [1984] 26 A.C.W.S. (2d) 432 (Ont. H.C.J.); Shulman v. Xerox Canada Ltd., (1986), 75 N.S.R. (2d) 7 (S.C.); Stewart v. Tarpline Products Inc., 2002 BCSC 59; Hasler v. Spagnol’s Wine & Beer Supplies Ltd., [1991] B.C.J. No. 3853 (S.C.); Pollock v. First Heritage Financial Planning Ltd., 2003 BCSC 179; Aleniuk v. Westown Ford Sales Ltd. (1981), 28 A.R. 473 (Q.B.); Tom Servinis Enterprises Co. v. Smerling Imports Canada Ltd. (1982), 14 A.C.W.S. (2d) 416 (Ont. H.C.J.); McHugh v. Fitness Canada Health Spa Ltd., [1996] O.J. No. 1698 (Gen. Div.) as analogous cases, Ms. Summerfield argued that the reasonable notice period was between six to nine months.

[34] The parties agreed on the general principles but disagreed on their application to the circumstances of the immediate case although, even here, the gap between the parties was only one month. Be that as it may, my own analysis of the various factors and Ms. Summerfield’s particular circumstances is that the appropriate reasonable notice period is six months and, as noted above, as a factual matter, there has been no failure to mitigate.

E. CONCLUSION

[35] For the above reasons, I grant Ms. Summerfield a summary judgment for $34,171.92.

[36] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Summerfield’s submissions within 20 days of the release of these Reasons for Decision followed by Staples’ submissions within a further 20 days.

Perell, J. Released: June 2, 2016