CITATION: Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 7546
DIVISIONAL COURT FILE NO.: 238/21
DATE: 20211115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATHESON, MEW, NISHIKAWA JJ.
BETWEEN:
SARAH NAHUM Plaintiff/Respondent
– and –
HONEYCOMB HOSPITALITY INC. Defendant/Appellant
Counsel: Stephen Le Mesurier and Andrew H. Monkhouse, for the Plaintiff/Respondent Brett D. Moldaver, for the Defendant/Appellant
HEARD (by videoconference): November 15, 2021
REASONS FOR DECISION
Matheson J. (orally):
[1] This is an appeal from the decision of Justice Akbarali dated February 26, 2021, arising from a summary judgment motion. The motion judge granted judgment in favour of the plaintiff (respondent) in this wrongful dismissal claim, awarding damages in the amount of $34,194.87, representing a five-month notice period, and costs in the amount of $22,000. The defendant (appellant) appeals from that judgment.
[2] The facts of this case are straightforward and need not be fully repeated here. The appellant hired the respondent as its ‘Director of People and Culture’. The respondent’s salary was $80,000 plus benefits. She was terminated after four and a half months of service, without cause. When she was terminated, she was 28 years old and five months pregnant.
[3] The respondent consistently applied for work after her termination, without success.
[4] The respondent sued for wrongful dismissal. She has expressly waived her claims based on human rights, including based on her pregnancy. The appellant has reserved its right to claim costs for those abandoned claims.
[5] On the summary judgment motion, the motion judge found that the pregnancy did have an impact on the notice period in the particular circumstances of this case.
[6] The motion judge considered the factors from Bardal v. Globe & Mail Ltd., 24 D.L.R. (2d) 140, [1960] O.W.N. 253 (H.C.). The motion judge found that the respondent was mid-level management. The motion judge concluded that the respondent had the education and skills required for many available positions, however, the motion judge also inferred that the job market was competitive. The respondent had applied for 36 jobs before her baby was born and 75 positions since the birth, with only one interview and no success.
[7] On the subject of pregnancy, the motion judge agreed with the appellant that “pregnancy should not function to automatically lengthen the notice period in every case”. However, in deciding this case, the motion judge concluded that pregnancy did have an impact on the reasonable notice period given the point in the respondent’s pregnancy at which she was terminated and the competitive job market.
[8] On costs, the respondent submitted a partial indemnity costs claim of $47,519.40 including HST and the appellant submitted a substantial indemnity costs claim of $12,500 or alternatively partial indemnity costs of $9,000 in relation to the abandoned claims. The motion judge considered the r. 57.01 and r. 57.05 factors and the circumstances of the case and awarded the respondent $22,000 in costs.
[9] The appellate standards of review apply to this appeal, as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[10] The appellant raises three issues on the appeal:
a. Did the motion judge make an error of law by including pregnancy as a factor in the determination of reasonable notice?
b. Did the motion judge otherwise make an error in determining the notice period to be five months?
c. Did motion judge err in the costs determination?
[11] On the first issue, the appellant submits that the motion judge made an error by considering pregnancy as a Bardal factor and taking judicial notice of pregnancy as a factor in the ability to secure employment in the absence of evidence.
[12] The appellant submits that in the respondent’s case, there was not the evidence needed to reach the conclusion about the impact of her pregnancy. Further, the appellant submits that this puts an employer in a difficult position because the employer may not even know (as was the case here) that an employee is pregnant.
[13] The motion judge considered the Superior Court case of Harris v. Yorkville Sound Ltd., [2005] O.T.C 1065, 2006 C.L.L.C. 210-027 (S.C.) where Dambrot J. concluded that he did not require evidence to find that the plaintiff’s pregnancy did not enhance her immediate employability and added two months’ notice. The motion judge also cited this Court’s decision in Ivens v. Automodular Assemblies Inc. (2002), 162 O.A.C. 124, 18 C.C.E.L. (3d) 240 (Div. Ct.) where this Court noted that the appellant’s pregnancy complications were a “Bardal-type factor” that should have been considered by the trial judge.
[14] The motion judge distinguished Colburn v. Unity Savings and Credit Union Ltd., [2001] O.T.C. 543 (S.C.) because it was decided before the Ivens trial judgment was overturned by this Court. The motion judge rejected the appellant’s submission that including pregnancy would imply that prospective employers will violate human rights legislation for their hiring decisions and the dismissing employer will be held responsible for others’ wrongs, and instead drew a parallel to the disability context.
[15] We conclude that the motions judge did not err. The motion judge correctly applied a line of case law that supports her conclusion. The motion judge did not proceed on the basis that pregnancy would automatically lead to an extension of the notice period. She expressly rejected that approach. Each case must be considered on its own facts.
[16] Considering pregnancy as a Bardal factor is consistent with the Bardal framework because each case must be determined on its own facts. As for judicial notice, courts have already taken judicial notice of the fact that pregnancy makes re-employment more difficult, adding weight to the view that it is a common-sense observation.
[17] On the second issue, the motion judge made no palpable and overriding error in her consideration of the Bardal factors. The motion judge applied the correct test, weighed the evidence and determined the notice period.
[18] On the third issue, costs, the respondent raises a preliminary matter, specifically that the appellant cannot appeal the cost award without leave. This is disputed. However, assuming leave to appeal is required, we grant leave.
[19] The appellant submits that the motion judge erred in law by failing to consider costs relating to the abandoned claims. Further, the appellant submits that the amount recovered was in the monetary jurisdiction of the Small Claims Court and the motion judge should have applied r. 57.05(1) and ordered that the plaintiff not recover any costs. Finally, the appellant submits that the motion judge erred by not considering the contingency fee arrangement between the respondent and her counsel.
[20] The judicial discretion in awarding costs is entitled to a high degree of deference. Further, the motion judge did deal with the abandoned claims and r. 57.05(1). Finally, disclosing a contingency fee agreement is not a prerequisite to awarding costs, citing Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. We are not persuaded that the motion judge erred with respect to costs.
[21] This appeal is dismissed. The respondent shall have costs of this appeal, in the agreed all-inclusive sum of $9,000.
Matheson J.
Mew J.
Nishikawa J.
Released: November 15, 2021
CITATION: Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 7546
DIVISIONAL COURT FILE NO.: 238/21
DATE: 20211115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATHESON, MEW, NISHIKAWA JJ.
BETWEEN:
SARAH NAHUM Plaintiff/Respondent
– and –
HONEYCOMB HOSPITALITY INC. Defendant/Appellant
REASONS FOR decision
Released: November 15, 2021