COURT OF APPEAL FOR ONTARIO

CITATION: Beatty v. Best Theratronics Ltd., 2015 ONCA 247

DATE: 20150414

DOCKET: C59117

Gillese, van Rensburg and Pardu JJ.A.

BETWEEN

Clifford Douglas Beatty

Plaintiff (Respondent)

and

Best Theratronics Ltd.

Defendant (Appellant)

Frank Cesario and Siobhan M. O’Brien, for the appellant

Graeme B. Fraser, for the respondent

Heard: April 2, 2015

On appeal from the judgment of Justice Charles T. Hackland of the Superior Court of Justice, dated June 24, 2014.

ENDORSEMENT

[1] The respondent moved for summary judgment in a wrongful dismissal action. The motion judge granted partial summary judgment, and directed that the claims for aggravated, punitive and special damages proceed to summary trial.

[2] The appellant contends that the motion judge erred in his determination of the reasonable notice period of 16 months and in concluding that the respondent made reasonable efforts in mitigation. The appellant asks that the judgment be set aside and the respondent’s claim dismissed, or alternatively that a trial be ordered in respect of the period of reasonable notice and mitigation.

[3] The respondent is a high school graduate who, after a long career in the military, joined the appellant’s predecessor in 1994. Throughout his employment he was the “radiation safety officer” for the appellant’s facility that manufactures nuclear medical equipment. The respondent was 58 years old when his employment was terminated with 12 weeks’ salary and benefit continuation. He had 16 years of continuous employment with the appellant and its predecessors.

[4] The appellant asserts that, in determining the reasonable notice period, the motion judge erred in applying as a starting point one month per year of service, contrary to this court’s decision in Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R.(3d) 321, [1999] O.J. No. 5 (C.A.). Minott rejected a one month per year of service “rule of thumb” because such an approach would elevate length of service above all relevant factors in determining reasonable notice (at para. 73).

[5] We do not agree that the motion judge in this case applied any such approach. He considered the factors identified in Bardal v. The Globe and Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.) at p. 145: the character of the respondent’s employment, his length of service, his age and the availability of similar employment, having regard to his experience, training and qualifications. He considered various reported cases cited by the respondent where notice periods in the range of one month per year of service were applied to long service employees in senior technical positions, and concluded that these cases were comparable. He observed that the appellant’s position that 12 weeks’ notice was sufficient was “remarkable” and “with no real rationale”. He rejected as irrelevant two dated Nova Scotia decisions relied on by the appellant, where relatively short notice periods were applied for plaintiffs in non-technical positions who were initially terminated for cause. The motion judge did not apply a “rule of thumb” of one month per year of service; rather, he considered all of the Bardalfactors, including, importantly, the specialized character of the respondent’s employment.

[6] The appellant contends that the motion judge erred in finding that the respondent’s position as a radiation safety officer was highly specialized and technical, which in turn was relevant to the appropriate notice period and also to whether he had taken reasonable steps in mitigation.

[7] We disagree. The appellant’s job functions were described at para. 5 of the motion judge’s decision, which excerpts a passage from the appellant’s own factum on the motion. The respondent’s responsibilities included the development and maintenance of a radiation safety program in compliance with applicable regulations, safety training and tours of the appellant’s facility and coordinating the safety program with local emergency authorities. The respondent undertook these functions in a highly regulated environment; indeed he was the site contact with the regulator, the Canadian Nuclear Safety Commission (the CNSC). When the respondent went on short term disability the appellant brought in an outside specialist to fill the role, a person with 25 years’ experience working with the CNSC. There is simply no merit to the argument that the motion judge mischaracterized the appellant’s position when he concluded that it was specialized and technical.

[8] The appellant also asserted in oral argument that the motion judge had proceeded in an “unorthodox” manner in inviting written submissions respecting a decision of the Superior Court in a wrongful dismissal action involving the same employer that had been released while his own decision was under reserve: Vist v. Best Theratronics Ltd., 2014 ONSC 2867. In that case, a senior radiation physicist with 16 years’ service, who had been terminated with five weeks’ pay was awarded damages equivalent to six months’ notice. The motion judge distinguished Vist on the basis that there had been a 3.5 year interruption in the plaintiff’s service in that case. There was nothing unorthodox about the motion judge requesting submissions on the Vist case; indeed, since the period of overall employment was the same, and a shorter notice period was recognized in that case, it was appropriate for the motion judge to afford the parties (and in particular the appellant, who might have sought to rely on this decision) the opportunity to address this case, as relevant to the reasonable notice period.

[9] We therefore conclude that all of the relevant factors were properly identified and addressed by the motion judge in determining that 16 months was an appropriate notice period, and in firmly rejecting the appellant’s position that 12 weeks’ notice was sufficient.

[10] On the mitigation issue, the appellant acknowledges that it had the burden of proving failure to mitigate, and that the standard of review is palpable and overriding error. The appellant argues that the motion judge made such an error in accepting that the respondent made reasonable efforts to mitigate his damages when, in the period of ten months between his termination and his re-employment, he applied for only four positions. According to the appellant’s evidence, there were at least 16 suitable positions advertised in a local newspaper for which the appellant had not applied. The appellant suggested that, because these positions might have used some of the skills the respondent possessed, he ought to have applied for the advertised positions.

[11] The appellant referred to Anderson v. Cardinal Health, 2013 ONSC 6010, where the evidence was that the plaintiff had applied for 13 positions in eight months, and the defendant asserted that there were 27 positions for which she ought to have applied. In that case, the motion judge concluded that the availability of suitable alternative employment, relevant to both notice and mitigation, was a triable issue.

[12] There are fundamental errors in the appellant’s approach: first, mitigation is not simply a question of counting up the number of job applications submitted by a terminated employee. The entire job search must be considered. The respondent provided evidence as to the steps he took in attempting to seek re-employment in the areas of medicine, public health, radiation safety and quality assurance. He was cross-examined about his efforts, and the motion judge found that these efforts were reasonable.

[13] Second, the onus was on the appellant to prove that the respondent failed to take reasonable steps to find “a comparable position reasonably adapted to his abilities”: Link v. Venture Steel Inc., 2010 ONCA 144, [2010] O.J. No. 779 (C.A.), at para. 73. The various advertised positions referred to by the appellant that the respondent had not applied for were rejected by the motion judge as “completely inappropriate if they are intended to represent employment opportunities that the [respondent] should have been expected to pursue (eg. warehouse supervisor; warehouse personnel, order picker, general labourer, warehouse help, customer service rep, shipper receiver, etc.)” In the Anderson case, the motion judge was unable to assess on the evidence before her, whether the positions that the plaintiff had not applied for were suitable. In the present case, that assessment could be readily undertaken.

[14] All of the relevant evidence was before the motion judge on the mitigation issue, and the only reasonable conclusion was that the respondent acted reasonably in mitigating his losses when, ten months after his termination he was able to secure a contract position in the nuclear field.

[15] Finally, the appellant raised in its factum concerns about the ability of the motion judge to decide the issues of reasonable notice and mitigation in a Rule 20 motion. This is a case where it was manifestly fair and just for the motion judge to determine the issues he did in a summary manner. The motion judge had a full evidentiary record. The parties filed affidavits, and the respondent was cross-examined. There were no real credibility or even factual issues relevant to the period of reasonable notice and mitigation.

[16] There was no error in the approach, reasoning or conclusions of the motion judge. Accordingly, the appeal is dismissed. The respondent shall have his costs of the appeal in the sum of $16,500, inclusive of disbursements and applicable taxes.

“E.E. Gillese J.A.”

“K. van Rensburg J.A.”

“G. Pardu J.A.”