Court of Appeal for Ontario

Citation: Maasland v. Toronto (City), 2016 ONCA 551

Date: 2016-07-07

Docket: C61610

Before: MacPherson, Cronk and Benotto JJ.A.

Between:

Lisa Maasland

Plaintiff (Respondent)

and

City of Toronto

Defendant (Appellant)

Counsel:

Sharmila Clark and Amandi Esonwanne, for the appellant

Barry Weintraub, for the respondent

Heard: July 4, 2016

On appeal from the judgment of Justice Graeme Mew of the Superior Court of Justice, dated December 21, 2015.

ENDORSEMENT

[1] The respondent Lisa Maasland was a 25-year employee of the appellant City of Toronto. She has a B.A. Sc. in Engineering Science from the University of Toronto. In September 1989, she joined the City as a Programmer in the Transportation Department. In her career with the City, she held various positions. Between 1994 and 2014, she held progressively senior positions that involved project management in the field of intelligent transportation systems, including her promotion to the position of Senior Engineer in the Transportation Management Centre (“TMC”) in 1999.

[2] In 2014, the City reorganized the TMC. It transferred the respondent from one unit in the TMC to another unit. Her job title, work location, salary and benefits did not change. Her duties changed substantially, from mainly operational to mainly administrative.

[3] The respondent did not work after April 16, 2014, claiming she had been constructively dismissed. The City terminated her employment on December 15, 2014.

[4] The respondent brought an action for wrongful dismissal. The City defended.

[5] The parties agreed that the action could be resolved using the procedures contained in Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[6] The motion judge, Mew J. of the Superior Court of Justice, held that the respondent was constructively dismissed from her position, that the appropriate notice period was 26 months, and that the respondent’s mitigation efforts were reasonable.

[7] The City does not appeal the conclusions relating to constructive dismissal and the notice period. It does appeal the conclusion relating to mitigation.

[8] The appellant contends that the motion judge made several errors in his analysis about the respondent’s efforts to mitigate her losses after her dismissal. Since these errors relate to factual findings made by the motion judge, the standard of review on this appeal is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33.

[9] First, the appellant submits that the motion judge erred by concluding that the City’s treatment of the respondent during the reorganization process was “humiliating” and that it was reasonable for her to consider her relationship with the City as “irreparably damaged.”

[10] We do not accept this submission. There was ample evidence on this record to justify the motion judge’s conclusion that, in the totality of the circumstances, what had happened to the respondent was humiliating.

[11] Second, the appellant asserts that the respondent’s failure to seek work outside Toronto was unreasonable.

[12] We disagree. In its cross-examination of the respondent on her affidavit, the appellant asked questions about only one such employment possibility, a position with York Region in East Gwillimbury. The motion judge considered this job possibility:

There was a job opening with York Region that the plaintiff believed herself to be qualified for but which she did not apply for because the job would have been 50 km from her home.

[13] We cannot say that the motion judge’s conclusion on this issue comes even close to being a palpable and overriding error.

[14] Third, the appellant submits that the motion judge disregarded the respondent’s admissions related to the scheduling of the criminal trial dealing with the murder of her brother. The appellant says the need to be available for this trial provides the only logical – but also impermissible – explanation for the respondent’s failure to seek alternative employment after she was dismissed.

[15] We disagree. On this issue, the motion judge said:

There is also a suggestion that a personal family tragedy has contributed towards the plaintiff’s failure to obtain new employment. I do not find convincing evidence to support that suggestion.

[16] We would not interfere with this conclusion. The respondent was attempting to keep informed about new positions during her notice period. Moreover, there is absolutely nothing wrong with the respondent, dismissed from a 25-year position at age 58, including planned attendance at the trial relating to the murder of her brother as a contextual factor in her search for a new position.

[17] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $20,000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”