Court File and Parties
COURT FILE NO.: CV-20-00647013-0000 DATE: 20220413 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
LUIS LOPEZ-GONZALEZ Plaintiff
- and – RELIANCE LEGAL SERVICES LIMITED Defendant
Counsel: James Parker for the Plaintiff Eric Volpert, principal of Reliance Legal Services Limited, self-represented
HEARD: March 30, 2022
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] The Plaintiff Luis Lopez-Gonzalez brings a summary judgment motion in a wrongful dismissal action against his former employer, the Defendant Reliance Legal Services Limited. The parties agree that the case is suitable for a summary judgment.
B. Facts
[2] Eric Volpert, a former professional fire-fighter, is the principal owner and manager of Reliance Legal Services Limited, which carries on the business of serving and filing and retrieving court documents in the City of Toronto.
[3] Mr. Lopez-Gonzalez began his employment as a process server with Reliance Legal on June 23, 2011. He was paid a salary of $55,000 per annum with three weeks paid vacation, plus a vehicle allowance of $1,200. He has never had a raise in his salary.
[4] On March 27, 2020, at the outset of the first wave of the Covid-19 pandemic, Mr. Volpert told Mr. Lopez-Gonzalez that he was temporarily laid off effective immediately and that his work and salary were suspended; it was a layoff.
[5] Approximately four months later, on July 19, 2020, Mr. Volpert sent Mr. Lopez-Gonzalez an email message at his work email address advising that Reliance Legal would be closing indefinitely and that there was no guarantee that a position would be available to the Plaintiff in the future. Mr. Lopez-Gonzalez did not receive the message, but two weeks later on July 28, 2020, Mr. Volpert forwarded a copy to Mr. Lopez-Gonzalez’s personal email address.
[6] Mr. Lopez-Gonzalez replied to Mr. Volpert on August 18, 2020. In his email, Mr. Lopez-Gonzalez said that he had understood that the layoff would be temporary and that he had expected to be recalled but that this now seemed unlikely. On the same day, by an Interac e-transfer, Mr. Lopez-Gonzalez returned $580.13, which was the petty cash he had in his possession.
[7] Mr. Lopez-Gonzalez, who is an immigrant from Venezuela and whose first language is not English, set about trying to find replacement employment. This was difficult because of the pandemic and because of his age and his limited employment experience in Canada. He applied for ninety-four positions after he was initially placed on a layoff. His efforts were unsuccessful and to date he has not earned any employment or self-employment income.
[8] On July 15, 2021, Reliance Legal sent Mr. Lopez-Gonzalez a letter that formally terminated his employment because Reliance Legal was ceasing operations. Enclosed with the letter was a cheque for $4,220.38, for eight weeks’ wages in lieu of notice of termination, less statutory deductions and less $580.13 for petty cash owing.
[9] Pursuant to s. 56 (5) of the Employment Standards Act, 2000, when an employee’s employment is terminated during a layoff, the employment is deemed to be terminated on the first day of the layoff. Thus, Mr. Lopez-Gonzalez was deemed terminated effective March 27, 2020, the date he was first placed on a temporary layoff.
[10] At the time of his termination, Mr. Lopez-Gonzalez was 59 years of age and had been employed by Reliance Legal for nine years and one month.
C. Law
[11] 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.
[12] 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. 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. The determination of a reasonable notice period is a principled art and not a mathematical science. In Minott v. O'Shanter Development Co., 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.
[13] In Cronk v. Canadian General Insurance Co., 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.
[14] 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 that would attribute 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. a. 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. b. Generally speaking, the longer the duration of employment, the longer the reasonable notice period. c. 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. d. 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. e. The effect of the Covid-19 pandemic, which has affected the entire Canadian and world economy, may justify a longer notice period because of the attendant difficulty finding another employment position.
[15] 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. 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.
[16] The onus is on the defendant to establish a failure to mitigate. 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. In assessing the innocent party's efforts at mitigation, the courts are tolerant, and the innocent party need only be reasonable, not perfect.
D. Discussion and Analysis
[17] One can have a great deal of sympathy for Mr. Volpert. He exemplified the plight of the small business owner who does his best to sustain his business and keep employment opportunities available for his employees, but his best efforts are overwhelmed by a public health emergency that continues to roil personal health, mental health, financial health, and economic health.
[18] Mr. Volpert made a valiant effort to defend the action, and he submitted that his business had complied with the requirements of the Employment Standards Act, 2000 and that compliance was all that was required in circumstances where he had attempted to be loyal to his employees.
[19] In this regard, however, Mr. Volpert was mistaken, and Mr. Lopez-Gonzalez is entitled to compensation at common law for having been dismissed without cause and without adequate notice.
[20] Mr. Volpert relied on the provisions of that Employment Standards Act, 2000 that have suspended the operation of constructive dismissals during the public health emergency. These provisions, however, are of no assistance to his company, because Mr. Lopez-Gonzalez has not been constructively dismissed. He has been dismissed. With the operations of Reliance Legal being wound down, there is no job for Mr. Lopez-Gonzalez to return to.
[21] In short, Reliance Legal has no defence to Mr. Lopez-Gonzalez’s claim and Reliance Legal has not met the onus of proving that there has been a failure to mitigate.
[22] I was provided with a group of more or less comparable cases to assist in determining what is the appropriate notice period in the immediate case. Those cases would support a notice period between 12 months to 15 months. There is, of course, an understandable selection bias in a plaintiff’s use of precedents in wrongful employment cases, but I am satisfied that the appropriate range is between 9 months and 15 months. I am also satisfied that the appropriate notice period in the particular circumstances of the immediate case is 12 months.
[23] Given that in the immediate case the appropriate notice period is one year, and given that Mr. Lopez-Gonzalez has waived his claim with respect to the petty cash deduction, the calculation of Mr. Lopez-Gonzalez’s damages for wrongful dismissal are straightforward. He is entitled to his annual base salary during the 12-month notice period plus the annual vehicle allowance of $1,200 less the termination pay he was paid. This claim totals $47,738.48 ($55,000 +$1,200 - $8,461.52).
E. Conclusion
[24] I, therefore, award Mr. Lopez-Gonzalez $47,738.48.
[25] If the parties cannot agree about the matter of costs, they may make submissions in writing (maximum 3 pages) beginning with Mr. Lopez-Gonzalez’s submissions within twenty days from the release of these Reasons for Decision, followed by Reliance Legal’s submissions within a further twenty days.
Perell, J. Released: April 13, 2022