Court File and Parties

COURT FILE NOs.: CV-21-00671285 and CV-12- 0067180 DATE: 20220325 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Diane Ratigan, Plaintiff – AND – Premier Conferencing (Canada) Limited, Defendant

AND RE: Thomas Bouttier, Plaintiff – AND – Premier Conferencing (Canada) Limited, Defendant

BEFORE: E.M. Morgan J.

COUNSEL: Brandin O’Connor, for the Plaintiffs Ian St. John, for the Defendants

HEARD: March 25, 2022

Endorsement – Partial Judgment

[1] Both actions here are wrongful dismissal actions against the same employer and on the basis of similar employment contracts. On January 12, 2022, counsel all appeared at CPC. Justice Myers ordered that the two summary judgment motions be heard together today, and he set a timetable to that end.

[2] The contentious issues between the parties are limited in number. The dispute was set out succinctly by Myers J. in his endorsement of January 12, 2022:

The plaintiffs move to enforce severance agreements. The validity of the agreements are admitted. Mitigation is not yet waived as an issue.

The only real issue is the defendant’s assertion that it is not required to pay a lump sum. But it is not paying periodically yet either.

The motions in both actions will be heard together with one factum from each side only on March 25, 2022 for three hours.

[3] Although mitigation was not yet waived as a defense at the time of the CPC attendance, it has since then been waived by the Defendant. It was waived actively in the Bouttier case and in the Ratigan case it was waived passively by not responding to a Request to Admit served by Plaintiff’s counsel which contained an admission that mitigation is not a defense given the provisions of the employment contract.

[4] I understand why mitigation has been waived as an issue given the terms of the two agreements. They speak to unconditional payments of six months’ salary in the Ratigan case and twelve months’ salary in the Bouttier case, without any mention of those payments being conditional on or recalculated in accordance with the Plaintiffs’ mitigation. Given the case law that holds that severance provisions with specific payments like this are designed to bring finality to disputes between the parties, the waivers were little more than acknowledgment of the terms of the contracts and the state of the law: Russo v. Kerr Bros Ltd., 2010 ONSC 6053, at para 633.

[5] Following the CPC appearance, Plaintiffs’ counsel proceeded to prepare motion materials and served all materials in a timely fashion. Defendant’s counsel did not serve any responding materials, nor did he seek to cross-examine the Plaintiffs’ affiants. Plaintiffs’ counsel advises me that he was told by Defendant’s counsel that the Defendant did not intend to file any materials for the record. I presume that this meant that Defendant’s counsel would rely on the materials filed by the Plaintiff in making any submissions at the return of the motion.

[6] On the eve of the hearing – i.e. last night – Defendant’s counsel advised Plaintiffs’ counsel that he had a breakdown in his relationship with the Defendant and would be getting off the record. Defendant’s counsel appeared before me at the hearing and confirmed that he is getting off the record and indicated that he has no instructions from the Defendant to make any submissions other than to request an adjournment.

[7] Another lawyer, Michael Simaan, appeared at the hearing as well to advise me that he expected to be retained by the Defendant in the near future, but has not yet been retained and so cannot formally go on record. He supported the Defendant’s request for an adjournment.

[8] Plaintiffs’ counsel strenuously objects to an adjournment. He points out that liability has been admitted by the Defendant in both of his clients’ cases. In addition, he notes that the question of whether the six months’ severance owed to Ms. Ratigan should be paid monthly or in lump sum is now moot, as six months has passed since the date of her termination.

[9] In Mr. Bouttier’s case, he is owed twelve months’ severance, and so the debate can still go on but only for another six months. It is Plaintiffs’ counsel’s view that an adjournment does nothing more than to delay the inevitable payments that the Defendant must make to both Plaintiffs.

[10] An adjournment is discretionary for a motions court judge, which should be exercised with a view to the demands of justice under the circumstances: Ariston Realty Corp. v. Elcarim Inc., [2007] OJ No 1497 (SCJ). I will exercise my discretion to grant an adjournment so that the Defendant can change counsel, but the adjournment only pertains to the portion of the Bouttier motion on which there is still a contentious issue – i.e. whether the next six months of payments to Mr. Bouttier are to be in a lump sum or on a monthly basis. There is nothing contentious left in the Ratigan motion since all liability is admitted and the six month period for monthly payments has in any case elapsed; likewise, there is nothing contentious about the first six months’ worth of payments to Mr. Bouttier, as that period has passed and the amounts are due and payable.

[11] Mr. Simaan responded to this suggestion by Plaintiff’s counsel by indicating that if he is eventually retained by the Defendant he might seek to withdraw the Defendant’s admissions with respect to mitigation. At this point, of course, it is difficult for me to take that submission into account.

[12] Mr. Simaan is not retained, the time period for the Defendant to file anything in the record has come and gone. During that period, the Defendant was represented by Mr. St. John who has not filed anything suggesting a withdrawal of an admission.

[13] I therefore have nothing before me that supports any defense by the Defendant and I cannot speculate on whether anything would be forthcoming, or whether Mr. Simaan will ultimately be retained.

[14] The Defendant is the Canadian subsidiary of a sophisticated corporate party headquartered in the United States. Its U.S. counsel attended the Zoom hearing before me on a watching brief. If the Defendant wanted to change counsel and eliminate any doubt about its intentions, it could have done so in advance of today’s hearing.

[15] Having not done so, I am left with a record in which full liability to Ms. Ratigan and partial liability to Mr. Bouttier are clear, and in which there is a limited debate about the timing, but not the liability for, remaining payments to Mr. Bouttier. I have to take the record as it is, and not speculate on what might occur in the future when the balance of the motion returns.

[16] I hereby grant judgment in the Ratigan case. The Defendant shall pay Ms. Ratigan damages in the amount of $73,076. This represents the six months of salary owing to her as severance. This action is now over and a final judgment can be taken out by her counsel.

[17] Further, I hereby grant partial judgment in the Bouttier case. The Defendant shall pay Mr. Bouttier $256,951.32. This represents the six months of salary owing to Mr. Bouttier up to March 20, 2022 ($187,962), relocation expenses ($46,433.88), benefits for the six-month period calculated as 5% of salary ($9,398.07), and employer contribution to his RRSP for the six month period ($13,157.34). Amounts owing by the Defendant to Mr. Bouttier for the second six months of his twelve-month severance entitlement will be determined at the next return of the motion. In the meantime, Mr. Bouttier’s counsel is at liberty to take out a formal Order reflecting this amount owing to him.

[18] The Defendant shall pay the Plaintiffs’ costs for today’s appearance in the amount of $5,000 (i.e. $2,500 to each of the Plaintiffs).

[19] I would expect all of the amounts ordered payable herein to be paid to each of the Plaintiffs by the next court appearance in this matter.

[20] The balance of the Bouttier motion (Court File No. CV-12- 0067180) is adjourned to an appearance before me on April 19, 2022 at 11:30 a.m., for two hours. I remain seized of the motion.

Date: March 25, 2022 Morgan J.