CITATION: Linton v. Blaney McMurtry LLP, 2021 ONSC 321
DIVISIONAL COURT FILE NO.: 111/20 DATE: 2021/01/12
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Lederer and Sheard JJ.
BETWEEN:
BERNADINE THERESA LINTON
Daniel A. Lublin and Marc W. Kitay, for the Plaintiff (Appellant)
Plaintiff (Appellant)
– and –
BLANEY MCMURTRY LLP
D. Barry Prentice, counsel for the Defendant (Respondent)
Defendant (Respondent)
HEARD by videoconference: January 12, 2021
BY THE COURT (Orally)
[1] The appellant, Bernadine Theresa Linton, worked as a legal assistant for the respondent, Blaney McMurtry LLP (“Blaneys”) for 15 years. She was terminated without cause on April 11, 2019. Ms. Linton was then 69 years of age.
[2] Blaneys continued to pay Ms. Linton’s salary and benefits for eight weeks, and paid her 15 weeks’ salary plus vacation accrued, but not taken, to June 6, 2019. Blaneys also offered to pay Ms. Linton a further lump-sum payment equivalent to seven months’ salary and benefits which would have brought her total remuneration to just over 12 months. Ms. Linton refused Blaneys’ offer and sued for wrongful dismissal.
[3] Ms. Linton’s claim was determined by G. Roberts J. on a motion for summary judgment. All parties agreed that it was appropriate to determine the period of notice by way of a summary judgment motion. The motions judge determined that 12 months was a reasonable period of notice. Amounts previously paid by Blaneys were credited against the damages awarded. To recognize Ms. Linton’s duty to mitigate and the possibility that she would secure alternate employment in the two months remaining of the notice period, the motions judge discounted the award by 10% calculated on the unexpired two months of the notice period.
[4] Ms. Linton appeals the decision of G. Roberts J. and asks this court to substitute its own damage award based on a notice period of no less than 24 months, without any contingency discount, or, at most, a discount of 1% calculated against the two months remaining in the notice period.
Jurisdiction and Standard of Review
[5] This panel has jurisdiction over this appeal pursuant to section 19(1.2)(a) of the Courts of Justice Act RSO 1990, c. C. 43 as the decision of G. Roberts J is a final order for a single payment of not more than $50,000, exclusive of costs.
[6] Both parties agree that a motions judge’s decision on the notice period is a discretionary decision deserving of considerable deference and that an appellate court may only substitute the notice period found by a motions judge where the motions judge erred in principle, made unreasonable findings of fact or where the notice period is outside the reasonable range Minott v. O’Shanter Development Company Limited, 1999 3686 (Ont. C.A.).
Issues on this Appeal
[7] Ms. Linton asserts that the motions judge made several errors in principle, unreasonable findings of fact and came to a conclusion about the notice period that was outside the reasonable range. In particular she erred in principle by giving disproportionate weight to the character of Ms. Linton’s employment, and further erred by “collapsing the character of her employment and the availability of employment in one combined analysis.” She also erred in principle because her reasons supported an inference that she reduced the weight given to Ms. Linton’s 15-year tenure with Blaneys on the basis that Ms. Linton had started her employment with Blaneys later in her career, and that this employment comprised only one-third of her entire career. In addition, Ms. Linton asserts that the motion judge gave inadequate weight to the evidence that Ms. Linton had had no luck at all in finding replacement employment. According to Ms. Linton, the motions judge made unreasonable findings of fact in assessing the character of Ms. Linton’s employment, particularly when she interchangeably referred to Ms. Linton as both a “secretary” and a “legal assistant”. Ms. Linton also alleged that the motions judge’s discounting of the award was an error in principle. Finally, she maintained that the amount awarded was outside the acceptable range.
Alleged unreasonable findings of fact
[8] Ms. Linton asserts that the motions judge erred in characterizing her career as that of a “secretary” and as a “legal assistant”, performing secretarial duties.
[9] In her affidavit, Ms. Linton stated that she had worked for 12 years as a secretary before beginning a 20-year period as a legal assistant, 15 years of which were spent at Blaneys. Ms. Linton described her work as including consultations with clients, drafting correspondence and loan documents, assisting with technical transaction inquiries and marketing initiatives and updating the firm’s internal database.
[10] In its responding affidavit, Blaneys disputed Ms. Linton’s characterization of the nature of some of the work she performed at Blaneys. For example, Blaneys stated that Ms. Linton was inaccurate in characterizing speaking with clients on the phone as “consultation” which, according to Blaneys, consisted of taking and sending messages for the lawyers to whom Ms. Linton was assigned. Also, while Blaneys did not dispute that Ms. Linton had drafted correspondence, they asserted that she did so using Blaney’s template.
[11] We conclude that the motions judge’s reasons do not demonstrate that she unreasonably characterized the nature of Ms. Linton’s employment. From her perspective, the use of the words “secretary” and “legal assistant” were alternate ways of describing Ms. Linton’s position. This was consistent with Ms. Linton’s description of herself as a “secretary” in her resume.
Alleged Errors in Principle
[12] Both parties accept that Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, should be applied in this case. The motions judge also acknowledged the principle found in Di Tomaso that the court ought not to place too much emphasis on the character of employment. Thus the length of Ms. Linton’s employment should not be limited or reduced simply because she was a non-managerial employee. The appellant asserts that when the motions judge referred to Ms. Linton’s skills as being generic and fairly transferable, this is what she was doing. We do not agree. We accept Blaney’s submissions that these findings were directed toward Ms. Linton’s ability to find alternate employment. Someone who has generic transferable skills is more likely to find a job than someone who does not. Thus, it was not an error in principle for the motions judge to take this factor into account.
[13] Similarly, we do not accept that when the motions judge found it relevant that this was not the only employment that Ms. Linton had had she was discounting the value of her length of service because she had started her job with Blaneys at an older age. Rather, this reference is to distinguish Ms. Linton’s situation from the one where an employee has only had one employer and thus their skills have become tailored to the needs of that employer, which in turn makes them less marketable.
[14] The appellant also asserts that the motions judge erred in failing to give sufficient weight to her evidence about her efforts to find alternate employment, which had been entirely unsuccessful. We find that the motions judge took into account Ms. Linton’s evidence, but she also considered the evidence put forth by Blaneys, that it sought temporary staff through agencies providing temporary secretarial assistance and that Ms. Linton ought to have included temporary agencies in her employment search efforts.
[15] Read as a whole, the reasons of the motions judge show that she appropriately considered and weighed the “Bardal” factors, (referring to Bardal v. Globe & Mail Ltd. (1950), 1960 294 (ON SC), 24 D.L.R. (2d) 140, at p. 145, as endorsed by the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 SCR 986), that the reasonableness of notice must be decided with reference to each particular case having regard “to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard the experience, training and qualifications of the servant.” In doing so she made no error in principle
Was the Motions Judge Decision Outside an Acceptable Range?
[16] While the notice period fixed by the motions judge may have been at the low end of the range, we are not persuaded that the motions judge’s determination of the reasonable notice period was outside an acceptable range. As stated by the court in Minott, the goals of achieving predictability, consistently and reasonable certainty for employees and employers is best achieved “by a careful weighing and blending of the Bardal and other factors relevant to the calculation of reasonable notice… recognizing that no two cases are the same.”
Contingency Reduction
[17] The final issue raised by Ms. Linton is that the motions judge erred in reducing the award by 10% allocated against the two months’ of unexpired notice.
[18] We would not allow the appeal on this basis as the motion judge’s decision on this issue is entitled to deference and the effect of this reduction was minimal when viewed in the context of the motions judge’s judgment as a whole.
[19] For the reasons given by Sheard J., this appeal is dismissed.
[20] The respondent has agreed to waive its costs of this appeal and thus there shall be no order as to costs.
___________________________ Sachs, J.
Lederer, J.
Sheard, J.
Date of Oral Reasons for Judgment: January 12, 2021
Date of Release: January 15, 2021
CITATION: Linton v. Blaney McMurtry LLP, 2021 ONSC 321
DIVISIONAL COURT FILE NO.: 111/20 DATE: 2021/01/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Lederer and Sheard JJ.
BETWEEN:
BERNADINE THERESA LINTON
Plaintiff (Appellant)
– and –
BLANEY MCMURTRY LLP
Defendant (Respondent)
ORAL REASONS FOR JUDGMENT
BY THE COURT
Date of Oral Reasons for Judgment: January 12, 2021
Date of Release: January 15, 2021