ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-433952
DATE: 20120525
BETWEEN:
ERIC RUBIN
Plaintiff (Moving Party)
– and –
HOME DEPOT CANADA INC.
Defendant (Responding Party)
Philip R. White, for the Plaintiff (Moving Party)
Christian Paquette, for the Defendant (Responding Party)
HEARD: March 2, 2012
lederer j. :
Introduction
1This is a motion for summary judgment brought by the plaintiff. On the day he was fired from his job, Eric Rubin signed a release. It is his view that, given the circumstances in which it was signed, the release should not be enforced. On the motion, Eric Rubin seeks damages in the amount of $72,076.36, which represents twenty months as reasonable notice for the dismissal.
Background
2Eric Rubin had been employed by Home Depot Canada Inc. and a predecessor since 1991. On July 28, 2011, without any prior warning, he was terminated. Two days earlier, he had been instructed to and, on July 28, 2011, he attended a meeting. He was not advised of its purpose and assumed it was a “normal business meeting”. The meeting lasted only a few minutes. As it began, Eric Rubin was given a letter terminating his employment and was told that “this is your last day”. The letter advised that “your current position, as a Competitive Shopper, no longer exists effective today”.
3The termination letter “offered” twenty-eight weeks pay in lieu of notice in the amount of $30,977.81. This was said to “exceed our obligations under the Employment Standards Act” in circumstances where the legislation required that Eric Rubin be paid twenty-seven and three- quarter weeks pay in lieu of notice. The “offer” was to continue Eric Rubin’s medical, dental and basic life insurance for twenty-eight weeks (until February 9, 2012) or the date that Eric Rubin obtained alternative employment. His Short-Term Disability (“STD”) and Long-Term Disability (“LTD”) benefits were to be discontinued after eight weeks (September 22, 2011), which was the notice period required by the Employment Standards Act, 2000, S.O. 2000 c. 41 There is no reference to his Accidental Death and Dismemberment coverage (“AD&D”) which, pursuant to the Employment Standards Act, 2000, was required to be maintained for eight weeks. Counsel for Eric Rubin understood this to mean that this benefit was to be discontinued. The affidavit of Stephen Fraser, the store manager, who advised Eric Rubin that he was terminated, says Eric Rubin’s disability benefits were continued until the end of the relevant notice period.
4To obtain the benefit of the offer, Eric Rubin was required to sign the release.
5Eric Rubin executed the release during the meeting. It was submitted that he did this because he believed the offer he received from Home Depot was all that he was entitled to. The termination came as a surprise. Eric Rubin was not thinking clearly and did not think he had any option. At the time he signed the release, he was unaware of his common law rights or his statutory rights, under the Employment Standards Act, 2000. Shortly after the meeting, Eric Rubin came to realize that he had made a mistake by signing the release. He immediately contacted his accountant and his family lawyer. Eric Rubin was referred to his present counsel. On Friday, August 5, 2011, counsel sent a demand letter to Home Depot challenging the enforceability of the release and asking to negotiate a proper severance package.
6For its part, Home Depot stands by the release and the offer it accepted. Home Depot makes clear that Eric Rubin was, in no way, pressured to make a decision at the meeting on July 28, 2011. The letter afforded him one week to consider the offer. Eric Rubin took the time to carefully read the letter before he signed. He asked about his options regarding the possibility of apportioning funds towards his RRSP. At the conclusion of the meeting, Eric Rubin was invited to contact the “District Talent Manager” of Home Depot. He took up the suggestion and telephoned her, after the meeting, during the afternoon of July 28, 2011. They did not speak until the following day. It would seem that, during the course of the telephone conversation, Eric Rubin voiced no dissatisfaction and raised no concerns with respect to the release that he had signed the day before.
7The release required that $1,540.89 of the lump sum payment be directed to the RRSP of Eric Rubin. This payment was not made. It was not until the exchange of the material leading to this motion that Home Depot became aware of this error. On behalf of Home Depot, this was described as an oversight. The payment has now been made.
The Motion
8The motion is for summary judgment.
9In considering such a motion, the judge is required to ask whether the full appreciation of the evidence and issues required to make dispositive findings can be achieved on a motion for summary judgment. If not, the matter should be left to proceed to trial where, in the normal course, this full appreciation can be developed (see: Combined Air Mechanical Services Inc. v. Flesch , 2011 ONCA 764 , at para. 50 ). In this case, neither party has suggested that the required full appreciation cannot be achieved on the motion. As I have already noted, the plaintiff seeks a finding setting aside the release, a determination of the appropriate notice period and of the damages to be awarded. For its part, the defendant submitted that the release be left to stand. It asks for summary judgment dismissing the action. If the release is to be left in place, like the plaintiff, the defendant asks that the notice period be assessed. In the circumstances, I have treated this motion as one where the parties have agreed to submit their dispute to resolution by way of summary judgment (see: Combined Air Mechanical Services Inc. v. Flesch , supra, at para. 72 ). I do this understanding that it does not relieve me of the responsibility to ensure that I can have, and do have, the familiarity with “...the total body of evidence in the motion record...” required to decide the matter (see: Combined Air Mechanical Services Inc. v. Flesch , supra, at para. 53 ).
Legal Context
10In Brito v. Canac Kitchens , 2011 ONSC 1011 , [2011] O.J. No. 1117, 87 C.C.E.L. (3d) 184 (appeal allowed only in respect of punitive damages, 2012 ONCA 61 , [2012] O.J. No. 376), Mr. Justice Echlin began his judgment with the observation that employment law in Canada has changed:
Although it did not occur overnight, the 20th Century witnessed significant changes in the way in which workers were treated. It may now be fairly and generally asserted that today, in the absence of a voluntary resignation, or misconduct on the part of the employee, Canadian employers must dismiss their employees with proper notice or pay in lieu thereof.
11Brito considered the case of a long-service employee, who had been dismissed without cause, and provided only with his statutory entitlements, pursuant to the Employment Standards Act, 2000 . During the reasonable notice period to which the employee was entitled, he was diagnosed with cancer and became totally disabled. He did not have STD or LTD because they had been cancelled by the employer at the conclusion of the statutory notice period. Mr. Justice Echlin determined that the employer was responsible to pay the benefits as if the coverage had not been cancelled.
12The issue with the case I am asked to decide is whether the change to which Mr. Justice Echlin referred can extend to circumstances where the employee has accepted an offer and signed the release. The law pertaining to the enforceability of the release executed in the context of the dismissal of an employee was set out by the Court of Appeal, in Titus v. William F. Cooke Enterprises Inc., 2007 ONCA 573 . In that case, the plaintiff, the employee Titus, worked as in-house counsel for the defendant, employer. It was the third time that the plaintiff had been engaged, in this capacity, by the defendant. After eighteen months, he was fired. The employer offered a settlement package, provided that the employee signed a release. Titus accepted the offer and signed the release. He obtained new but less-remunerative employment within two weeks. He brought an action against the employer claiming that the settlement and release were unconscionable. The trial judge found in favour of the employee. The Court of Appeal set aside that judgment. The trial judge had failed to consider the law applicable to unconscionability. The Court of Appeal referred to and relied on Cain v. Clarica Life Insurance Co. (2005), 2005 ABCA 437 , 263 D.L.R. (4 th ) 368, at para. 32 , in identifying the four elements which are necessary to demonstrate that a release is unconscionable:
a grossly unfair and improvident transaction;
victim’s lack of independent legal advice or other suitable advice; and
overwhelming imbalance in bargaining power caused by victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or other disability; and
other party’s [sic] knowingly taking advantage of this vulnerability.
( Titus v. William F. Cooke Enterprises Inc. , supra, at para. 38 )
13Can Eric Rubin bring himself within each of these four elements?
... (text continues exactly as in the source) ...
LEDERER J.
Released: 20120525
COURT FILE NO.: CV-11-433952
DATE: 20120525
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ERIC RUBIN Plaintiff (Moving Party) – and – HOME DEPOT CANADA INC. Defendant (Responding Party)
JUDGMENT
LEDERER J.
Released: 20120525