Court File and Parties

COURT FILE NO.: CV-19-79011 DATE: 2021/03/16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIANE CURRIE Plaintiff – and – NYLENE CANADA INC. Defendant

Counsel: Melynda Layton, for the Plaintiff Caroline Richard, for the Defendant

HEARD: January 14 and 15, 2021

REASONS FOR JUDGMENT

M. smith j

1The Plaintiff, Ms. Diane Currie (“Ms. Currie”) brings an action against the Defendant, Nylene Canada Inc. (“Nylene”) for: (a) damages in the amount of $77,379.68 for loss of remuneration; (b) damages in the amount of $10,000.00 on account for loss of benefits; (c) general damages in the amount of $75,000.00 on account of discrimination and breach of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”); (d) special damages resulting from Ms. Currie’s expenses incurred in securing alternate employment; (e) pre and post-judgment interest; and (f) costs.

2At the conclusion of the trial, Ms. Currie sought to amend her claim as follows: (a) increase the amount of damages to $138,962.22 representing 26 months notice; (b) add a claim for aggravated/moral damages; and (c) in respect to the breach of the Code, add two grounds of discrimination, namely age and disability.

3Ms. Currie testified on her own behalf, while Nylene called three witnesses: John Fishenden, Human Resources and Health and Safety Manager with Nylene; Amanda Arseneau, a former legal assistant working with counsel for the Defendant at Bird Richard; and Travis Ujjainwalla, a lawyer with Bird Richard.

4For reasons that follow, I grant Ms. Currie judgment for $138,962.22 less the amount already paid by Nylene.

ADJOURNMENT

5This trial was scheduled to commence on January 11, 2021. During the Trial Management Conference that took place on January 8, 2021, Nylene advised that Ms. Currie was still sending documents to be relied upon at trial, contrary to Master Kaufman’s Order dated December 17, 2020. More specifically, Ms. Currie was required to serve all documents that pertained to her mitigation efforts by no later than January 4, 2021.

6Nylene requested that any documents served beyond June 4, 2021 should be excluded pursuant to r. 30.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). I denied Nylene’s request on the basis that these documents were important in considering the issue of mitigation. The trial was adjourned to January 14, 2021, with costs thrown away to Nylene. The parties provided their written costs submissions.

7Nylene says that Ms. Currie sent them additional documents (24 job applications not previously disclosed) on January 6, 8 and 11, 2021. As a result, Nylene claims to have lost four hours in the preparation of the cross-examination and closing arguments and spent an additional six hours in revising the cross-examination, closing and costs submissions. Counsel’s hourly rate is $350.00 per hour. They rely upon Nelson v. Chadwick, 2019 ONSC 4544 (“Nelson”) for the proposition that costs thrown away are generally paid on a substantial or full indemnity basis. They seek payment of $3500.00 or $4400.00, respectively.

8Counsel for Ms. Currie acknowledges having sent 20 new job searches past January 4, 2021. It is argued that Nylene has the burden to prove that Ms. Currie’s mitigation efforts were unreasonable in all respects and that these additional documents do not change that burden. Further, she submits that it is unclear as to how 20 additional documents caused four hours of revisions and preparation of Ms. Currie’s cross-examination. Ms. Currie alleges that Nylene’s request to adjourn the trial was a litigation tactic and unnecessary. She argues that it would be unfair for her to be required to pay costs on the basis submitted by Nylene.

9As stated by the Court at para. 27 in Nelson, costs thrown away are not meant to punish but to indemnify a party for the wasted time incurred for trial preparation.

10It is imperative that parties adhere to document disclosure timelines that are ordered by the Court, especially with an approaching trial date. Failure to do so will have consequences. In this case, the documents provided late by Ms. Currie had never been seen by counsel for Nylene and an adjournment was appropriate. Ms. Currie did not comply with Master Kaufman’s Order. She has not provided me with any compelling reasons for breaching the Order.

11Time needed to be spent by counsel to review the new documents, consult with her client and consider whether these documents impacted Nylene’s position. That said, the type of documents served by Ms. Currie were simply additional job search confirmation emails that already formed part of Nylene’s trial preparation. In light of the fact that these new documents were similar to the previous ones, it is my opinion that the time thrown away and the revised preparation should be minimal. Ten hours of time sought by Nylene is excessive.

12In exercising my discretion, I find that $1000.00 (plus H.S.T.) represents a fair and reasonable amount for costs thrown away.

MOTION TO AMEND

13Rule 26.01(1) of the Rules states that “on motion at any stage of action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment” (emphasis added). Ms. Currie requires leave of the Court, pursuant to r. 26.02 (c) of the Rules.

14Where full particulars of a claim that a plaintiff wishes to add are not pleaded in the original Statement of Claim, the Court may decline leave to amend: Miceli v. Chrysler Canada Inc., 2019 ONSC 7463, at paras. 53-54.

15Although the Rules are to be interpreted liberally in respect to amending a pleading, requesting leave at the conclusion of a trial, once all of the evidence has been presented, is less than ideal and not proper. In these circumstances, I find that the presumption of prejudice is significant, and the onus to rebut such a presumption falls upon Ms. Currie.

Increasing damages to $138,962.22

16Paragraph 14 of the Statement of Claim sets out that Ms. Currie is seeking 26 months notice. Nylene concedes that Ms. Currie’s position regarding entitlement to this notice has been clearly advanced since the issue of the claim. As such, I grant Ms. Currie’s request to increase her damages for loss of remuneration to $138,962.22.

Aggravated/Moral Damages

17Ms. Currie submits that Nylene was aware that she was making a claim for aggravated/moral damages and that her position regarding bad faith conduct has been known. Ms. Currie concedes that bad faith was not pleaded but she argues that it is an issue that arose during the trial.

18Nylene says that aggravated/moral damages have not been claimed. The Statement of Claim is devoid of any words that could be used to reference this type of claim such as “bad faith, aggravated, insensitivity or high handedness”. Nylene submits that it would be improper to allow such an amendment.

19Aggravated damages are compensatory and awarded against an employer who engages in conduct that is unfair or is in bad faith. There is no real distinction between aggravated damages and moral damages. Damages are attributable from the conduct in the manner of termination: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362.

20Ms. Currie’s only reference to Nylene’s wrongdoing vis-a-vis its conduct in the manner of termination is found at paragraphs 16 and 17 of the Statement of Claim. It is limited to an allegation that Nylene discriminated against Ms. Currie on the basis of her sex.

21Rule 25.06(1) of the Rules provide that “every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.” Pleading of a claim is a must. Without it, a defendant is unable to address and defend the allegations. Here, for the claim of aggravated/moral damages, Ms. Currie was required to set out the facts that support an allegation that Nylene engaged in unfair or bad faith conduct. It is not present in the Statement of Claim. Even on a generous read of the pleadings, I cannot conclude that Ms. Currie has pleaded any facts that can be tied to a claim of aggravated/moral damages. Further, Ms. Currie has not presented any evidence in support of her contention that this issue only arose at trial and that Nylene was well aware of the bad faith claims made against them.

22Therefore, Ms. Currie’s request to add a claim of aggravated/moral damages is denied.

Adding discrimination grounds

23Unlike aggravated/moral damages, Code damages are remedial and are meant to compensate for the infringement of rights under the Code. The only infringement of rights alleged by Ms. Currie in the Statement of Claim pertains to the discriminated ground based on her sex. Nothing more.

24Ms. Currie urges me to broadly interpret paragraph 1(c) of the Statement of Claim to include the additional grounds of discrimination. To reiterate, this paragraph reads: “General damages in the amount of $75,000.00 on account of discrimination and breach of the Ontario Human Rights Code”. Ms. Currie then sets out the facts in support of the allegations of the breach (see paragraphs 16 and 17 of the Statement of Claim).

25If Ms. Currie wished to advance a claim against Nylene that they discriminated against her on the basis of her age and disability, she had to say so in her Statement of Claim. Without setting out the facts necessary to support such an allegation, Nylene is unable to respond.

26There are no facts or particulars in the Statement of Claim that remotely relate to the discriminated grounds of age and disability. A generous read of the claim or a broad interpretation of paragraph 1(c) of the Statement of Claim is not helpful to Ms. Currie. I cannot conclude that pleading, as it stands, includes any of the proposed additional grounds of discrimination.

27To allow an amendment at this late stage (in closing submissions) is not only inappropriate but highly prejudicial to Nylene. Again, had Ms. Currie wished to make allegations of discrimination on the prohibited grounds of age and disability, they had to be clearly set out in the Statement of Claim.

28As such, Ms. Currie’s request to add the two additional grounds of discrimination is denied.

BACKGROUND

29Ms. Currie was offered employment with Badische Canada Limited (“BASF”) on September 12, 1979 as a temporary Twisting Operator with the company. She worked at the Arnprior facility. At some point during her employment with BASF, she enrolled in the BASF Pension Plan for Canadian management Represented Employees (the “Pension Plan”).

30On or about June 9, 1999, Ms. Currie was promoted to Relief Chief Operator. In year 2000, the title of her position changed to Production Lead Hand, which is synonymous with Chief Operator. As of 2004, Ms. Currie’s official title was Chief Operator – Spinning/SDT/Zeftex.

31In or around 2004, BASF was sold to Honeywell Nylon Canada Inc. (“Honeywell”). As of the date of this purchase, Ms. Currie was no longer allowed to contribute to the Pension Plan. Honeywell had replaced the Pension Plan with an RRSP matching program. Ms. Currie nonetheless maintained the rights to her Pension Plan.

32On or about October 30, 2005, Nylene purchased the facility in Arnprior from Honeywell.

33On or about November 1, 2005, Nylene offered employment to Ms. Currie, effective November 17, 2005, by way of a formal written offer.

34On June 9, 2017, Ms. Currie was advised that she satisfied the criteria to receive her accumulated Pension Plan. However, in order to access the Pension Plan, Ms. Currie was told that she was required to retire, but then Nylene would offer her employment following the retirement. Ms. Currie was encouraged to seek financial and/or legal advice before advancing her request to access her Pension Plan. Ms. Currie opted to access her Pension Plan.

35On or about June 20, 2017, Ms. Currie accepted Nylene’s offer of employment, which read as follows:

Nylene Canada is pleased to offer you employment with the following initial terms:

• Your current job responsibilities and reporting relationships will remain the same
• You will be compensated at your current salary level or rate of pay
• Your accrued and unused vacation balances, if any, will be recognized
• You will be eligible to participate in Nylene Canada’s employee benefits plan
• Your service will be recognized for purposes of determining vesting and benefits eligibility under the Nylene Canada benefit plan
• You agree to carry out your work in accordance with the policies and procedures of Nylene Canada. The policies and procedures are available to all employees through the shared file management system
• You agree that the wearing of required protective safety equipment and complying with safety rules when called for are conditions of your employment

36On or about December 12, 2018, a meeting was held where Nylene advised its employees that the company was discontinuing the fiber operation effective December 11, 2018. A total of 17 employees (3 women and 14 men) had their employment terminated on a without cause basis.

37Ms. Currie was 58 years old at the time of her termination.

38After her termination, Ms. Currie was paid the following amounts:

a. Her regular pay up to and including December 12, 2018; b. All accrued but unused vacation pay up to and including February 6, 2019 totalling $8,386.32; c. Eight (8) weeks of termination pay in the amount of $7,869.12 less applicable statutory deductions; d. Twenty-six (26) weeks of severance pay in the amount of $25,574.64; e. Continuance of health and dental benefit coverage up to and including February 6, 2019; and f. Pension contributions were continued by Nylene up to and including February 6, 2019.

39Ms. Currie remains unemployed.

ISSUES

40The issues to be determined are:

a. Issue #1: Is Ms. Currie’s retirement in January 2017 considered to be a break in the employment relationship? b. Issue #2: What period of notice was Ms. Currie entitled to upon the termination of her employment? c. Issue #3: Did Ms. Currie take reasonable steps to mitigate her loss? d. Issue #4: Is Ms. Currie entitled to damages for discrimination?

ANALYSIS AND DISPOSITION

41Let me first address the credibility of the witnesses. I found that Ms. Currie and Mr. Fishenden were both forthright, truthful and responsive to the questions being posed to them. Some of their evidence diverged on a few minor points, but not to the extent that would make me doubt the truthfulness of their testimonies.

42In relation to the testimonies of Mr. Ujjainwalla and Ms. Arseneau, it was limited to describing the steps that they took in conducting job searches for positions for which they believe Ms. Currie was qualified. Their testimony was uncontroversial, and it was carried out in an honest manner.

Issue #1: Is Ms. Currie’s retirement in January 2017 considered to be a break in the employment relationship?

43Assessing a potential break in service is a fact specific exercise.

Position of the parties

44Ms. Currie argues that her employment was not severed in June 2017 nor were the conditions of her employment altered at that time. It is submitted that there is no evidence that Ms. Currie gave up her right to common law reasonable notice or the acknowledgment of her service as a 39-year employee.

45Moreover, it is argued that if Nylene wished to rely upon this termination to limit Ms. Currie’s status as a new employee, it was incumbent upon Nylene to advise Ms. Currie of such.

46Ms. Currie relies upon the decision of Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, 435 D.L.R. (4th) 573 (“Dawe”). In that case, the plaintiff was employed by the defendant for 37 years and he was terminated without just cause. The trial judge found that the plaintiff was entitled to 30 months notice as well as some bonus payments for this period. On appeal, the Court reduced the notice period to 24 months, stating that there were no exceptional circumstances. On the issue of the bonus payments, the appeal was dismissed because the Court found at para. 5 that the termination provision dealing with the bonus plan was “unclear and confusing” and it was imposed unilaterally by the defendant without bringing it to the attention of the plaintiff. At para. 72 of the decision, the Court wrote:

Where changes are imposed unilaterally by the employer, the essence of the problem is whether the employee accepted the newly imposed terms of employment. In order to rely upon the limits created by the termination provisions, Equitable Life was required to prove that Mr. Dawe accepted these adverse, unilateral changes to an integral part of his compensation package. A pre-condition to acceptance is knowledge of the changes. On the record before the motion judge, he was entitled to find that Equitable Life failed to prove that Mr. Dawe knew about these changes, or that these changes were effectively communicated by Equitable Life to Mr. Dawe.

47Ms. Currie indicates that a severance of tenure is an onerous term and it should have been clearly explained to her. She relies upon a British Columbia Court of Appeal decision called Karroll v. Silver Star Mountain Resorts Ltd. (1988), 40 B.L.R. 212 (B.C. S.C.) where the plaintiff was injured in a ski race. The plaintiff had signed a document prior to the race which released the defendant from liability. At para. 22 of this decision, the Court said:

[…] there is no general requirement that a party tendering a document for signature to take reasonable steps to apprise the party signing of onerous terms or to ensure that he reads and understands them. It is only where the circumstances are such that a reasonable person should have known that the party signing was not consenting to the terms in question, that such an obligation arises. For to stay silent in the face of such knowledge is, in effect, to misrepresent by omission.

48Nylene takes the position that Ms. Currie’s retirement and acceptance of the new offer of employment constitutes a break in service. The new employment agreement was required because of Ms. Currie’s retirement. Had Ms. Currie not retired, there would have been no need to enter into a new employment agreement.

49Nylene argues that it only recognized Ms. Currie’s service for the purposes of determining vesting and benefits eligibility under the Nylene benefits plan.

50Nylene denies that it changed the terms and conditions of Ms. Currie’s employment or that there exist any onerous clauses. Nylene did not take any unilateral steps that affected Ms. Currie’s employment. Rather, it is Ms. Currie who chose to access her Pension Plan and it was her sole decision to make. She was not coerced into signing the documents presented by Nylene nor was she forced to decide within a strict timeline.

51Nylene argues that even if the documents do not specifically outline that Ms. Currie’s new service date is June 2017, it does not change the outcome. The service ended. Nylene relies upon the decision of Theberge-Lindsay v. 3395022 Canada Inc., 2019 ONCA 469, where the Court of Appeal of Ontario found that a break in service took place. The plaintiff had provided notice to her employer that she was resigning but later advised her employer that she wished to remain. The plaintiff was presented with a new employment agreement, which she signed. At para. 11, the Court was of the view that the plaintiff’s resignation constituted a break in service:

We agree with the appellant's submissions that Ms. Theberge-Lindsay's unequivocal resignation and re-hiring in 2005 marked a break in the employment relationship after which an entirely new contract was reached between her and Dr. Kutcher. There was consideration for that new employment contract, that is, Ms. Theberge-Lindsay's offer to again be employed by Dr. Kutcher and his acceptance of her offer to again employ her. On this basis, the Employment Standards Act, 2000 minimum notice is the maximum amount to which the respondent is entitled, measured from 2005. On this basis, she is entitled to 7.5 weeks of salary at $1,204 per week, less $1,200 severance already paid.

52Nylene also relies on the decision of McLaughlin v. Looby Construction Ltd., [2006] O.J. No. 142 (“McLaughlin”), which has some similarities to the case at bar. The plaintiff and the defendant’s General Manager had multiple conversations about the plaintiff’s retirement. The Court found that the plaintiff chose to retire, and he expressed that intention to the defendant. This intention was confirmed in writing by the employer.

Application to the facts

53Ms. Currie testified that in early June 2017, while she was on a day shift, Mr. Fishenden approached her to say that she was eligible to collect her BASF pension because with her service and age, she had reached the factor of 85. Ms. Currie thought that this was a good idea. Her pension was not growing, and she could use the money to pay off her new vehicle.

54Ms. Currie received a letter from Mr. Fishenden which explained that she had attained the eligibility criteria and she could now access her pension. She was also provided an offer of employment from Nylene. Before signing the offer of employment, she asked Mr. Fishenden whether everything remained the same (i.e. rate of pay, benefits, seniority, etc.) to which he responded that it did.

55Ms. Curries denies that she was told that she needed to retire. No words of retirement were ever spoken to her.

56Mr. Fishenden says that according to the BASF pension administrator, in order to receive the pension, an employee must retire from Nylene and a Record of Employment (“ROE”) must be provided to the employee. Afterwards, Nylene is able to offer that employee an offer of employment.

57Mr. Fishenden testified that he hand-delivered a letter to Ms. Currie advising her that she was eligible to receive her pension if she so chose.

58Mr. Fishenden acknowledged that for the purposes of the Pension Plan, BASF permitted Nylene to continue counting the years of service towards the 85 formula.

59Mr. Fishenden recalled that he told Ms. Currie that he needed to prepare a ROE to reflect the retirement and he asked her whether she wanted a copy of the ROE or to leave it in the file. Ms. Currie would have opted for the latter option.

60Ms. Currie does not recall Mr. Fishenden’s question regarding the ROE. She received two ROEs after her termination. The first ROE covered the period of June 22, 2017 until termination, while the second ROE had a start date of July 2, 2015 (new contract of employment after the purchase from Honeywell) until June 21, 2017 (date of Ms. Currie’s retirement). On the second ROE, there was a hand notation that read “Retired in order to draw pension, continues to work full-time”.

61During cross-examination, Mr. Fishenden agreed with the following assertions:

• he is the person who reached out to Ms. Currie in regard to her Pension Plan entitlement;
• he did not advise Ms. Currie that in terms of her employment seniority, she would no longer be treated as a 39-year employee, but rather a one-year employee; and
• he did not advise Ms. Currie that in the event of her termination of employment, her entitlement would only be based upon a one-year service.

62Ms. Currie admits that the offer of employment dated June 9, 2017 does not say that Nylene will recognize her service. She agrees that it said: “Your service will be recognized for the purposes of determining vesting and benefits eligibility under the Nylene Canada benefits plan.”

63In Ms. Currie’s employment file, there is a document titled “Employment Record” which lists all important events, ranging from the date of hire, merit increases, disability leaves as well as the closing of the fiber operation on December 12, 2018. Quite telling, there are no entries for 2017, including Ms. Currie’s alleged retirement.

64Ms. Currie has a grade 11 education. Without having been told explicitly the impact that a new employment contract may have on her rights and entitlement, I would not have expected her to understand the legal nuances of signing a new offer of employment.

65Notwithstanding what the new employment agreement may have said, I accept Ms. Currie’s evidence that upon exercising her right to access the Pension Plan, she was told that nothing was going to change in her employment, and that everything was going to remain the same. Other than the June 9, 2017 signed offer of employment, Ms. Currie did not provide Nylene with a notice of resignation or retirement. No such evidence exists.

66Had Ms. Currie retired and/or resigned as suggested by Nylene, I find that it would have been transcribed onto the Employment Record as it would have been an important event to record on her employment file.

67It is undisputable that Ms. Currie signed the documents that were given to her in June 2017, but she did so under the assurance that nothing was going to change. While it is written on the document that Ms. Currie should seek independent financial and/or legal advice before advancing her request for access to her pension, she relied upon the company’s representation that everything would remain the same. Accessing her pension was not even on Ms. Currie’s radar. It was Nylene that approached her.

68Unlike the cases relied upon by Nylene, I find that there was no voluntary retirement on Ms. Currie’s part. They are easily distinguishable. Ms. Currie was not prepared to stop working. She signed the documents prepared by Nylene for the sole purpose of accessing her Pension Plan and on the assurance that her employment would remain the same.

69Although there may have not been an onerous clause inserted in the new employment agreement, the fact of executing the new employment had an onerous effect. In my opinion, it was incumbent upon Nylene to clearly point out any changes to Ms. Currie’s employment status if she chose to exercise this option. Mr. Fishenden candidly admitted that this was not done. Losing her status as a 39-year employee and having her tenure no longer be recognized is significant and it should have been flagged and explained to Ms. Currie. I find that Ms. Currie was unaware of this change prior to the execution of the new employment agreement.

Disposition

70I do not accept that there was a break in service. Ms. Currie did not voluntarily or knowingly give up her right to common law reasonable notice. She did not contract out of her common law rights. I find that she relied upon the representations made to her that her employment conditions would remain the same, which meant that her status as a long standing employee and that her tenure would not be affected by her signing a new employment agreement.

Issue #2: What period of notice was Ms. Currie entitled upon the termination of her employment?

71It is undisputed that Ms. Currie was dismissed without cause.

Position of the parties

72Ms. Currie submits that she is entitled to 26 months notice. She urges me to make a finding of an exceptional circumstance that would warrant exceeding the base notice period of 24 months, as set out in the decision of Lowndes v. Summit Ford Sales Ltd.. The determination of whether an exceptional circumstance exists is fact specific and discretionary.

73Nylene concedes that Ms. Currie is entitled to reasonable notice. They say that to calculate it, I must use Ms. Currie’s rehire date in June 2017 and not her start date in September 1979. In the alternative, Nylene submits that Ms. Currie would be entitled to no more than 15 months notice less the payments made by Nylene.

74The modern approach to determining wrongful dismissal damages is to apply the factors listed in Bardal v. The Globe and Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.) in a flexible way. The Bardal factors include: the character of employment, the length of service, the age of the employee, and the availability of similar employment, keeping in mind the experience, training and qualifications of the employee.

75In support of her position that 26 month notice is reasonable, Ms. Currie relies upon several decisions where the Courts found such a notice to be appropriate: Keenan v. Canac Kitchens Ltd., 2016 ONCA 79; Hussain v. Suzuki Canada Ltd. [2011] O.J. No. 6355 (Ont. S.C.); Cardenas v. Kohler Canada Co., [2009] O.J. No. 1570 (Ont. S.C.); Lee v. Bank of Nova Scotia, [2004] O.J. No. 3505 (Ont. S.C.).

76Nylene submits that there are no exceptional circumstances in this case and therefore takes the position that each of the cases relied upon Ms. Currie are distinguishable. It is argued that based upon the factors that apply to Ms. Currie’s case, an acceptable notice is 15 months. Nylene relies upon Messier v. Life Labs Medical Laboratory Services, [2018] O.J. No. 5608 and McLaughlin where the Court found the reasonable notice to be 16 and 15 months, respectively.

77Having found that there was no break in service, I must determine Ms. Currie’s entitlement to reasonable notice, based upon her 39 years of service.

Application to the facts

78Ms. Currie started her employment at the age of 18 years old and was terminated at the age of 58. She had planned to continue to work at Nylene until her retirement.

79She did not obtain a high school degree, having up to grade 11.

80She worked her way up from operator to Chief Operator. Other than two minor incidents in November and December 2017, the evidence supports the finding that Ms. Currie had a good employment record. Her performance appraisals reflect that her quality of work was good, she learned quickly and retained most of the knowledge, and she followed the area safety rules. There were some negative comments about improving her absenteeism and her temper, yet no disciplinary actions were taken from 1979 to 2017.

81As the Chief Operator – Spinning/SDT/Zeftex, Ms. Currie would report to the Shift Leader. Her duties included, amongst others, the following: scheduling the quality and utilization of production equipment, direction and work assignment of production employees, handle minor personnel problems, ensure the proper functioning of the equipment and the safe working procedures.

82On December 14, 2018, Ms. Currie requested a letter of reference from Mr. Fishenden and he agreed. He wrote that Ms. Currie proved to be a diligent and competent employee. He was recommending her for any position that reflected her qualifications.

83At the time of her termination, Ms. Currie’s computer skills were limited. Despite her efforts, Ms. Currie has been unable to secure alternative employment.

84The Ontario Court of Appeal has recently held in Dawe that exceptional circumstances will be required in order to support a notice period that exceeds 24 months. I acknowledge that the cases relied upon Ms. Currie predate Dawe but there are worthy of consideration because they share some similarities to the case at bar. When combining and applying all of the factors to Ms. Currie’s unique situation, I am of the opinion that taken as a whole, it supports the conclusion that there are exceptional circumstances:

a. Ms. Currie left high school to start working at BASF as a temporary twisting operator, earning $4.50 per hour. She secured this job through her father who had worked there for over 30 years until his retirement in 1999. She was eventually promoted to a supervisory position and she has faithfully remained with one employer (Nylene and its successor employers) for 39 years. Her entire working life has been dedicated to working at the Arnprior plant. She has known nothing else. b. At the time of termination, Ms. Currie was 58 years old. She was in her twilight working years, closing in on the end of her career. c. She has worked and developed skills in a very specialized field (fiber production operation). Finding similar employment, as described later in this decision, has not been easy. Ms. Currie has made diligent efforts to mitigate and attempt to gain basic computer skills. That said, I am not convinced that she will succeed in securing alternative employment, by no fault of her own. d. Since Ms. Currie entered the workforce in 1979, the work landscape has evolved and changed significantly. Ms. Currie’s experience has been limited to one employer (Nylene and its predecessors), in one type of environment (specialized manufacturing job), which makes it very difficult to transfer her skills to a new employer. e. Given Ms. Currie’s age, limited education and skills set, the termination was equivalent to a forced retirement. She must compete with people that are much younger than her and that have a different set of skills that may be required such as advanced computer knowledge. She is not well equipped to effectively compete in today’s market or secure comparable employment.

85Considering Ms. Currie’s unique situation and combining all of the factors set out in Bardal, I conclude that Ms. Currie has demonstrated the existence of exceptional circumstances.

Disposition

86As a result, I find that she is entitled to 26 months’ salary as compensation in lieu of notice.

87As at the completion of the trial, no amounts had been earned by Ms. Currie during the notice period. Based upon the evidence, it is highly unlikely that she would earn any income by the time that this decision is released. Accordingly, I am not prepared to reduce the notice period.

Issue #3: Did Ms. Currie take reasonable steps to mitigate her loss?

88While Ms. Currie has a duty to mitigate, the onus is on Nylene to demonstrate that Ms. Currie’s efforts were unreasonable in all respects, not just in one way. Thus, the burden for Nylene to challenge mitigation is an onerous one, requiring substantial proof: Clark v. Township of Otonabee-South Monaghan, 2019 ONSC 6978; see also Evans v. Teamsters Local Union No 31, 2008 SCC 20, [2008] 1 S.C.R. 661.

89The standard for demonstrating mitigation is reasonableness and Ms. Currie is not required to demonstrate perfection: Rothenberg v. Rogers Media Inc, 2020 ONSC 5853, at para. 51.

Position of the parties

90Ms. Currie submits that, post termination, she took reasonable steps to find employment, including, asking Nylene for employment in another division, engaging the services of career coach, taking several courses to acquire and upgrade some skills, as well as applying to 145 opportunities.

91Conversely, Nylene says that they assisted Ms. Currie in her job search, sending her 274 suitable job postings between March 2019 and February 2020. They argue that Ms. Currie failed to apply to many employment opportunities that were considered as valid, based upon her education, skills and experience. They also submit that reasonable notice should be reduced by two months.

Application to the facts

92Ms. Currie testified that shortly after the termination meeting, she approached Mr. Randy Nicholas, Nylene’s Manufacturing Area Supervisor. She asked him whether a lab position (posted in early December 2018) was still available. He answered that it was not. She then requested if someone could get “bumped” as she was not ready to lose her job. The response was “there is nothing for you”.

93Within a few weeks of her termination, Ms. Currie met with a career coach at Ontrac Employment Resource Services (“Ontrac”), which is a provincial governmental agency that provides employment assistance services. Several workshops were set up for Ms. Currie, which included drafting a resume, basic computer class, re-certification of First Aid and CPR, and Workplace Hazardous Materials Information System (“WHMIS”) training.

94Ms. Currie purchased a computer and a printer. She asked someone to assist her with the installation of Word onto her computer.

95Ms. Currie started to send her resumes in or around February 2019. She was looking for a position that paid in the range of $45,000.00 within 35 kilometers from her home. She had not been driving for very long and it previously only took her 5 minutes to get to work.

96In or around March 2019, Nylene (through their counsel) started to send Ms. Currie job opportunities that they identified to be rightfully suited, based upon her qualifications.

97Ms. Currie says that there were a number of jobs that were not suitable for her. Her limited education was a barrier. She was not bilingual and only had basic computer skills. She testified that any jobs requiring a professional trade designation were not appropriate as she did not possess any such designation.

98In or around May 2019, Ontrac recommended that she apply to two positions that had been posted by Nylene (Polymerization & Recovery (P&R) Operator and Lab Technician). Ms. Currie applied. She did not receive an acknowledgment from Nylene that her applications had been received. She was confused and hurt that she had not heard a word from Nylene.

99Ms. Currie admitted that she did not send Mr. Fishenden’s letter of reference to any perspective employers. She explained that the career coach at Ontrac had not advised her to attach the letter of reference to her job application. She was told that her resume was sufficient and if asked, she should provide the letter of reference.

100Ms. Currie testified that she applied to positions that she felt qualified for. In total, she applied to 145 opportunities.

101During cross-examination, Ms. Currie admitted that she may have applied for certain jobs for which she did not posses the qualifications. For example, she would have applied to a job that involved heavy lifting and the operation of a forklift. Another job required that she possess experience in the cheese industry or have knowledge of transportation law in the province of Ontario.

102Ms. Currie explained that Nylene had sent her so many jobs and that she felt the pressure of applying for them all, even if she did not possess the qualifications. Despite not being bilingual, she applied for a job at La Fromagerie in St. Albert. She also applied for a Sales Support Manager position with OZ Optics Ltd., which required that she possess “excellent computer database skills, particularly Maximizer and Excel spreadsheets”

103Mr. Travis Ujjainwalla (lawyer) and Ms. Amanda Arseneau (administrative assistant) testified that they both conducted job searches believed to be appropriate for Ms. Currie. They would compile a package of job postings, within a 75-100 km radius around Arnprior, and send them to her. These packages were sent to Ms. Currie between March 2019 until February 2020.

104Both Mr. Ujjainwalla and Ms. Arseneau had a general idea of Ms. Currie’s skill set, based upon their review of her resume. Prior to conducting their searches, they were not aware that she was not bilingual or that she was limited in the amount of weight that she could lift because of an injury.

105Having reviewed the job postings that were either provided by Nylene or Ms. Currie, I find that there were many jobs that were not appropriate for Ms. Currie. Jobs requiring the following qualifications were not, in my view, attainable by Ms. Currie: engineering degree, physically demanding, specialized skills (trade, accounting, finance, sales and marketing), experience with computers, specific industry knowledge (i.e. retail, automotive, cheese, construction, etc.).

106I accept that Ms. Currie applied for some jobs for which she was not qualified. Whether she was desperate or felt pressured in doing so, it does negate the fact that she nonetheless applied for 143 jobs for which she felt fell within her skill set.

107Ms. Currie testified that she received over 1700 job postings from Nylene. She says that it is possible that she may have missed some job opportunities that were suitable.

108I accept Ms. Currie’s evidence that she may not have applied to all of the job opportunities provided by Nylene. As explained above, some of them were not appropriate. For those other jobs that may have arguably been acceptable, I accept Ms. Currie’s evidence that she did not apply to the jobs that required heavy lifting because she would not be able to carry out any physical demanding tasks.

109While it may have been preferable that Ms. Currie send the letter of reference along with her resume, I do not find this to be a failure to mitigate. The letter provided by Mr. Fishenden was merely a form letter, describing Ms. Currie’s role as a Chief Operator. It is something that could have easily been described in the resume and did not add much value. I do not find that this type of letter of reference would have made much of a difference in securing employment.

110Ms. Currie was offered a part-time position with Pillar5 Pharma Inc. but refused to accept it. Nylene argues that this offer of employment shows that Ms. Currie is employable. While that might be true, this offer cannot be said to be similar and/or a suitable alternative job. It was a casual on-call assignment for a fixed term from March 11, 2019 to December 31, 2019, at a lower salary. Ms. Currie cannot be faulted for turning down this position, which in passing is the only offer of employment received since her termination.

111Nylene asks that I reduce the reasonable notice by two months because Ms. Currie did not provide any evidence of job applications for the months of May, June, September and November 2020. It cannot be disputed that, as the result of the pandemic, 2020 has been an extraordinarily different and difficult year for many, including employers. It is reasonable to say that during this past year, employers may have had to downsize and not expand, meaning that there are fewer job opportunities available. Even if it is accurate to say that Ms. Currie did not make any applications during the stated months, looking at all of her efforts since termination, I find that they have been more than reasonable. I do not find it appropriate to reduce the notice period by any amount of time.

112I find Ms. Currie’s mitigation efforts to be impressive. Immediately upon being told that she lost her job, she approached Mr. Nicholas and inquired if the positions that had been posted one week earlier were still available. Despite being told that they were not, she asked if someone else could be bumped, given her experience and seniority. Then, to her credit, shortly after her termination, Ms. Currie reached out to Ontrac for some assistance in finding employment. She purchased a computer, she created a resume, she learned basic computer skills, she re-certified her CPR and first aid program, and took a WHMIS course. Not only did she apply to a significant number of jobs in different sectors, she quite appropriately applied for two jobs at Nylene, given her intimate knowledge of the company and experience.

113Ms. Currie’s plans were to work at Nylene until her retirement and she was not ready to lose her job. I accept her evidence in this regard. Being unemployed at the age of 58, with limited education and transferable skills, is a difficult situation, to say the least. It can also be overwhelming and disheartening to apply for so many jobs without receiving any positive responses. Regardless, Ms. Currie persevered and continued with her job search. In my view, Ms. Currie should be commended for the decisive steps that she took in finding alternative employment.

Disposition

114Therefore, I find that Ms. Currie’s job search was entirely appropriate, and she made reasonable efforts to mitigate her damages.

Issue #4: Is Ms. Currie entitled to damages for discrimination?

115Ms. Currie seeks damages in the amount of $75,000.00 on account of discrimination and breach of the Code.

116As a result of my ruling on the motion, Ms. Currie’s claim under this head of damages is limited to any discrimination that was based upon her sex.

117To establish prima facie discrimination, a three-part test must be met: Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Peel Law Association v. Pieters, 2013 ONCA 396, 116 O.R. (3d) 81; Ontario v. Association of Ontario Midwives, 2020 ONSC 2839). Ms. Currie must demonstrate that: (1) she has a characteristic protected by the Code; (2) she experienced a negative treatment; and (3) a connection exists between the protected characteristic and the negative treatment.

118If Ms. Currie establishes a case of prima facie discrimination, the burden shifts to Nylene to provide an explanation that its actions were not discriminatory.

Position of the parties

119Ms. Currie argues that she applied to return to Nylene on two occasions: the first was on the day of her termination and the second was in May 2019. She says that she was an excellent employee and she should have been considered for these positions. She claims that Nylene created a ruse of written and verbal warnings for not being reinstated. Ms. Currie argues that she was discriminated on the basis of her sex and that is the reason why the positions were not offered to her.

120Nylene submits that the evidence on record does not establish discrimination and there is no evidence that Ms. Currie was not rehired because she is a woman. Although it is acknowledged that men were hired in the P&R Department, this does not mean that Nylene’s practice is that they do not hire women. To the contrary, Nylene has offered and hired women to various positions within the company.

Application to the facts

121Ms. Currie was one amongst 17 employees (men and women) that lost their job in December 2018.

122As noted earlier, on the day of termination, Ms. Currie approached Mr. Nicholas and expressed her interest in continuing to work at Nylene. She was told that there were no positions available for her. However, she was made aware that two of her male colleagues (Mr. Mike Ferguson and Mr. Jeff Lennox) had been offered positions in the P&R Department as chemical operators. Ms. Currie’s evidence is that she had more experience than both of them.

123Mr. Fishenden explained that Mr. Fergusson and Mr. Lennox were offered the chemical operators’ positions because they both had prior work experience in the P&R Department. Mr. Fergusson was trained in polymerization and worked as a P&R operator for one and half years, while Mr. Lennox also worked in that department for three years.

124Mr. Fishenden testified that Ms. Currie’s application was not considered for the chemical operators’ jobs because she did not have the requisite experience.

125In or around May 2019, Ms. Currie applied for two positions at Nylene (P&R Operator and Lab Technician). Mr. Fishenden testified that he received Ms. Currie’s application by email. Upon receipt, he showed it to Mr. Nicholas, Mr. Peter Seigel (Director – Polymers Manufacturing) and Mr. Dave Steeds (General Manager). He said that Mr. Steeds was usually not part of the hiring committee but given the legal action commenced by Ms. Currie, he was involved in the process.

126Mr. Steeds asked Mr. Fishenden to “check” Ms. Currie’s employment file. He completed the task and reported back that there were two disciplinary letters (December 2017) in her file. Mr. Fishenden did not advise Mr. Nicholas, Mr. Seigel or Mr. Steeds that there were no subsequent reprimands, as he was not asked.

127During cross-examination, Mr. Fishenden admitted that in light of Ms. Currie’s past reprimands, Mr. Steeds decided not to interview her for the posted positions. She was not interviewed because of these disciplinary letters.

128Mr. Fishenden also acknowledged during the cross-examination that Ms. Currie was a good employee. Mr. Fishenden did not reach out to Ms. Currie because the company does not reach out to those candidates that are not being interviewed.

129The evidence reveals that for the jobs posted in or around May 2019, they were offered to candidates that were external to the company. In specific reference to the Lab Technician position, Nylene first offered it to a woman that had previously worked at the company, but she did not accept the position. It was later filled by someone else who needed to be fully trained.

130Ms. Currie was of the belief that she was eligible for rehire. In support of this belief, she relied upon the letter of reference from Mr. Fishenden combined with the article printed in the Arnprior Chronicle-Guide on December 18, 2018 where Mr. Peter Seigel said “if more jobs are added, laid-off workers would be welcome to apply”.

131Ms. Currie wishes me to conclude that her non-rehire was a ruse. First, she says that Mr. Nicholas’ comment in December 2018 that there were no job opportunities was disingenuous. Second, utilizing the disciplinary letters as a reason not to interview her in May 2019 was the continuation of the ruse. They should not have formed part of her employment file. Further, Mr. Nicholas was well aware of these letters as he was the one that had drafted them. Other than those isolated incidents in December 2017, there were no issues with her performance, which was clear in Mr. Fishenden’s letter of reference.

132In response, Nylene says that in December 2018, there was no misrepresentation made by Mr. Nicholas. The positions had been filled and there were no other jobs being offered in the P&R Department. As for the May 2019 job openings, Nylene submits that Ms. Currie’s applications were in fact considered. They reviewed her employment file and on the basis of the past disciplinary issues, she was not rehired. It had nothing to do with her sex.

133Nylene submits that there is no legal obligation to rehire an employee. I agree. However, an employee has a right to equal treatment with respect to employment because of her sex, which includes job applications.

134On the evidentiary record before me, I cannot conclude the existence of a ruse nor that Nylene refused to rehire Ms. Currie because she was a woman.

135In my opinion, Ms. Currie has failed to demonstrate a prima facie case of discrimination. I am not persuaded that Ms. Currie has been the subject of differential treatment because she is a woman. The evidence falls short.

136I accept Mr. Fishenden’s evidence that the December 2018 positions were filled by two individuals that possessed experience in the P&R Department. Ms. Currie admitted that she never worked in this area. In my view, it was reasonable for Nylene to hire employees that had prior experience in this department. The fact that they were men does not in and of itself prove that Nylene discriminated against Ms. Currie because of her sex.

137In terms of the May 2019 applications, I am equally of the view that Ms. Currie has failed to establish discrimination.

138I disagree with Ms. Currie that the disciplinary letters should not have formed part of her file. Nylene’s policy and procedures regarding disciplinary action states at paragraph IV(2)(b)(iv) that “the written reprimand letter should be removed from the employee’s file one year after the date of entry, unless another written reprimand letter has entered the file in the meantime, in which case, removal is made one year after the last entry.” The last reprimand letter is dated December 14, 2017. The employees were terminated on December 12, 2018. As such, I find that it was proper for the letters to have remained in Ms. Currie’s file. I also accept that once an employee is terminated, it is no longer appropriate to remove any documents from the personnel file.

139Ms. Currie was not rehired in May 2019 because of her disciplinary record in December 2017. Her employment record may not have justified this decision but that is not the issue. Again, Ms. Currie must show that she was not rehired because she is a woman. In my opinion, Ms. Currie has again failed to establish this to be the case. Mr. Fishenden testified that the P&R Operator and Lab Technician positions were offered to external candidates. More importantly, the Lab Technician position was offered to a woman who had previously worked in the laboratory. Although she did not accept the position, I find this evidence compelling. Ms. Currie has not provided me with sufficient evidence to support that Nylene was discriminatory in its rehiring practice or that Ms. Currie was not rehired because of her sex.

Disposition

140In the absence of evidence, I am unable to conclude that Ms. Currie has established a prima facie case of discrimination on the grounds of sex.

CONCLUSION

141In closing, Ms. Currie is entitled to 26 months reasonable notice, which equates to $138,962.22.

142Ms. Currie’s claim of discrimination on the grounds of sex is dismissed. She has been unable to satisfy the three-part test enunciated above. Had I ruled that Ms. Currie been permitted to advance two additional prohibited grounds of discrimination (age and disability), the result would have been the same. The facts presented in this case simply do not support that Ms. Currie’s sex, age or disability were factors in Nylene’s decision to not rehire Ms. Currie.

143Despite my ruling denying Ms. Currie’s request to claim for aggravated/moral damages, I wish to make a few comments regarding the allegations of bad faith. In December 2018, Nylene made the business decision to cease the fiber operation. This affected 17 employees, including Ms. Currie. She was not targeted by this decision. Nylene communicated the closure of the fiber operation in a respectful manner. Ms. Currie was given severance, albeit not at the level that it should have been. A letter of reference was provided Ms. Currie. Through their counsel, Nylene offered some assistance to Ms. Currie by sending her some job postings that they believed were appropriate for her skill set. In the circumstances, I find that Nylene has not acted in bad faith or in breach of their duty of good faith towards Ms. Currie. Ms. Currie has not provided me with any persuasive evidence of wrongdoing which is worthy of censure or an award of aggravated/moral damages.

144Judgment is granted to Ms. Currie in the amount $138,962.22, less any payments made by Nylene.

COSTS

145If the parties are unable to agree on the issue of costs, Ms. Currie may deliver written submissions along with her Bill of Costs and Offers to Settle, if applicable, within 30 days of the date of this decision. Nylene may then deliver responding written submissions along with their Bill of Costs and Offers to Settle, if applicable, within 15 days of the receipt of Ms. Currie’s submissions. Ms. Currie may then deliver any reply submissions (limited to three pages in length) within seven days of the receipt of the Nylene’s submissions.

Justice Marc Smith Released: March 16, 2021