COURT FILE NO.: 11-4778 SR

DATE: 2012-05-30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jeanette Bomhof, Plaintiff

AND:

Eunoia Incorporated and Eunoia2 Incorporated, Defendant

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL:
P. Cicak, for the Plaintiff

B. Kelly, for the Defendant

HEARD: May 23, 2012

ENDORSEMENT

Background and Issues

[ 1 ] This is an action for wrongful dismissal. The Plaintiff Ms. Bomhof is a registered nurse and was employed as a Clinical Trials Co-ordinator with the Defendant corporations in succession from January 2003 to the date of her termination effective February 11, 2011. Ms. Bomhof was 64 years of age at the time of her dismissal. It is acknowledged by the Defendants that Eunoia2 Incorporated was a successor corporation to Eunoia Incorporated and accordingly, the Plaintiff’s eight year service was continuous. It was further acknowledged that the Plaintiff’s employment was not terminated for just cause, but rather the termination was due to adverse economic conditions affecting the employer. Accordingly the only issues in the action are what the required period of notice of termination was, and whether Ms. Bomhof took reasonable steps to mitigate her damages.

[ 2 ] Ms. Bomhof has brought a motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure. Her counsel Mr. Cicak argues that, on the authority of the case of Combined Air Mechanical Services Inc. v Flesch 2011 ONCA 764, the Court may have a full appreciation of the issues and evidence on the basis of the paper record in order to make a dispositive finding on both issues, namely the period of notice of termination to which Ms. Bomhof was entitled and whether she acted reasonably in mitigating her damages.

[ 3 ] Mr. Kelly, on behalf of the Defendants, argues that, on the unique facts of the case, a trial is required, and therefore disposing of the matter on a summary judgment motion is not appropriate. Specifically, he argues that the Plaintiff has not laid the necessary evidentiary groundwork for the court to make a determination on the Bardal factors [from Bardal v Globe & Mail Ltd. (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140 (Ont H.C.J.) and in particular, the significance of the factors relating to the Ms. Bomhof’s age and the availability of similar employment. Indeed, he invites the Court, on the authority of Rule 20.02(1) to draw an adverse inference against the Plaintiff for her failure to lead evidence with respect to the impact of her age and any lack of availability of similar employment. In this respect he argues that there is not a clear distinction between the questions of the requisite period of notice, as it may be affected by those factors, and the question of mitigation, but rather there is significant overlap between those issues.

Finding

[ 4 ] For the reasons set forth below, notwithstanding Mr. Cicak’s very capable submissions, I find that this is not an appropriate case for summary judgment, and accordingly, the motion is dismissed.

Discussion

[ 5 ] It has been held that there is no general rule that would preclude a judge from granting summary judgment in a wrongful dismissal action where the issue is the determination of the period of reasonable notice (see Ducharme v Cambridge Stamping Inc. 2008 19499 (ON SC), 2008 CarswellOnt 2432 (SCJ) at para. 10). It is also noted that the listed factors in Bardal are not an exhaustive list or catalogue, but rather the question of what would constitute reasonable notice of termination is to be decided with reference to the facts of each particular case, including the factors specifically mentioned in Bardal. Some of the usual factors will have relevance and some will not, and the relative weight to be attached to each factor will depend on the facts of each case.

[ 6 ] I find that it is not incumbent on a plaintiff in a wrongful dismissal action to lead specific evidence on each possible factor under the Bardal formulation, but rather the court is to weigh all of the various relevant factors, not necessarily with reference to detailed and specific evidence, based upon the facts of each case, in order to make a common sense determination of a reasonable notice period. An example of this exercise can be found in the case of Heslop v. Cooper’s Crane 1994 7384 (ON SCJ), rev’d on other grounds, 1997 700 (ON CA), involving a 65 year old “highly skilled” salesman, where Whalen, J. stated:

Although the plaintiff was healthy, energetic and wanting to work at the time of his termination, he was not a young man. Prospective employers seeking a long term employee will probably not be interested in him. His age will be his biggest drawback. This is a factor which will make it more difficult for the plaintiff to find employment and will therefore increase the notice to which he is entitled.

[ 7 ] In order to carry out this type of analysis, it is not necessary, in all cases, for a plaintiff to lead expert or other evidence on “the availability of similar employment,” notwithstanding that it is a factor which is specifically mentioned in Bardal. Similarly, it is not incumbent on a Plaintiff to lead specific evidence on the effect of his/her age on his/her ability to find alternate employment. Indeed, counsel for the Defendant was unable to point to any case in which such a requirement was imposed. The Court is able to make a common sense determination of the period of reasonable notice, based on the relevant factors, when armed with the necessary data such as the age of the employee, his/her length of service, nature of the position, degree of responsibility etc.

[ 8 ] As indicated above, counsel for the Defendant relies upon Rule 20.02 for the proposition that the Court should draw an adverse inference against the Plaintiff from her failure to lead evidence respecting the impact of the availability of similar employment and her age on the determination of a reasonable notice period. Rule 20.02 reads as follows:

20.02 (1) An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. O. Reg. 438/08, s. 12.

[ 9 ] In my view, this Rule is directed at the character or nature of the affidavit evidence led, namely whether it is within the knowledge of the affiant, or is made on information and belief, rather than at substantive requirements to lead specific evidence, such as, in the case of a wrongful dismissal action, factors to be considered on the determination of reasonable notice.

[ 10 ] In this case, the necessary data required to make a determination of a reasonable notice period is not in dispute (i.e. the Plaintiff’s age, length of service and character of the employment) and, if the period of reasonable notice were the only issue, the matter would be capable of being determined on a motion for summary judgment, as there are no credibility issues on the data going into that determination which would require a trial to resolve.

[ 11 ] However, there remains, as set forth below, conflict on the evidence as to whether the Plaintiff reasonably mitigated her damages. The two issues are intertwined to some degree since, as stated by Kruzick, J. in the case of Sears v. Toronto General Hospital 2001 CarswellOnt 2512(SCJ) at para. 28, the plaintiff’s efforts toward mitigation may provide a means of assessing the availability of other employment. More importantly, as discussed in more detail below, no significant efficiency is achieved by disposing of the notice period issue in isolation, in the context of this simplified procedure action.

[ 12 ] Molloy, J. on a motion for summary judgment decided prior to the January 1, 2010 amendments to Rule 20, and prior to the detailed consideration of the effect and scope of those amendments in Combined Air, in the case of Bullen v. Proctor & Redfern Ltd. 1996 8135 (ON SC), 1996 20 C.C.E.L. (2d) 36 (SCJ), observed, at para. 35, that in an appropriate case the length of notice can be determined on the motion and a trial directed only with respect to the mitigation issue. Although that may no doubt still be appropriate in certain cases, in a simplified procedure case, as indicated below, the Court is directed by Combined Air to have regard to the efficiencies provided by Rule 76, in determining whether to dispose of an action on a summary basis. Accordingly there may be a narrower range of simplified procedure cases where it would be appropriate to decide the notice period issue on a summary judgment motion and to send the mitigation issue on to trial, given the efficiency consideration.

[ 13 ] It is noted that the Court of Appeal in Combined Air made specific reference at paras. 252 to 262 to the application of the summary judgment procedure, including the enhanced powers under the January 1, 2010 amendments to the rule, to simplified procedure actions under Rule 76. At para. 254, the Court stated “no doubt, in appropriate cases, a motion for summary judgment in a Rule 76 action can be a useful tool to the efficient disposition of cases. However, it will often be the case that bringing a motion for summary judgment will conflict with the efficiency that can be achieved by simply following the abridged procedures in Rule 76.” In short, parties in Rule 76 cases, which enjoy the opportunity for a relatively speedy, efficient and inexpensive pre-trial and trial process, should not be too ready to add an additional step through a motion for summary judgment, which may have the effect of negating the efficiency benefits afforded by the rule. At para. 256, the Court of Appeal sent a clear warning that motions for summary judgment should be discouraged where there is competing evidence from multiple witnesses, the evaluation of which would benefit from cross-examination, or where oral evidence is clearly needed to decide certain issues. Exceptions to this, as indicated at para. 257, would be document-driven cases or a case where there is limited contested evidence.

[ 14 ] Although the two issues are intertwined, an important difference between the determination of an appropriate notice period and the determination of whether the Plaintiff took reasonable steps to mitigate in this case, relates to the question of onus. The Defendant bears the onus of proving that the Plaintiff did not take reasonable steps to mitigate, and that had she done so, she would found alternate employment, whereas the information on what steps the Plaintiff took and the reasons why she took those steps, and did not take other steps, is most often within the knowledge of the Plaintiff and not that of the Defendant. It is noted that the simplified procedure only provides limited scope for examination for discovery, where those issues could be potentially explored.

[ 15 ] Here the Defendant argues that the Plaintiff, acting reasonably, could have, and should have, widened the scope of her search for alternate employment to include nursing positions in a hospital setting, and that she unreasonably terminated her search for alternate employment when she found a part-time position, which paid approximately one-half of her former salary with the Defendant. The Defendant points to evidence of an apparent shortage of qualified nurses in Ontario, and the availability of advertised or posted positions for trained nurses in the region.

[ 16 ] It is noted that the Plaintiff does not explain why she ceased searching for full-time employment after she secured a part-time position with Aim Health Group in mid-May, 2011, notwithstanding her statement, at para. 15 of her affidavit, that “my income with Aim Health Group has proven insufficient to cover all of my expenses and does not allow me to save for my retirement.”

[ 17 ] Although this may not be a case involving multiple witnesses, in my view, it is a case where oral evidence would be necessary to decide the mitigation issue. Although counsel for the Plaintiff submits that if the court has any difficulty making a dispositive finding on the mitigation issue, it should order the hearing of limited oral evidence on that issue under rule 20.04(2.2). However, the Court of Appeal, at para. 256 of Combined Air has indicated that “the efficiency rationale in [rule 76] will indicate that the better course is to simply proceed to a speedy trial, whether an ordinary trial or a summary one.” The Court added at paragraph 261 “in the context of a simplified procedure action, a summary judgment motion that requires oral evidence from key witnesses offers little or no benefit from an efficiency standpoint as compared to the parties simply proceeding to trial.”

[ 18 ] To the foregoing I would add an additional observation emanating from Combined Air. At para. 57 the Court of Appeal added a caveat to the “best foot forward” principle, applying to motions for summary judgment, by stating that it may not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production and oral discovery be completed before a party is required to respond to a summary judgment motion. Here even the limited oral discovery afforded by Rule 76 has not been completed, and it may not be in interest of justice to require the Defendant, which bears the onus on mitigation, to respond to the summary judgment motion.

Disposition

[ 19 ] On the basis of the foregoing, the Plaintiff’s motion for summary judgment is dismissed. The parties may make brief written submissions (i.e. not exceeding 5 double-spaced pages excluding cost outline) with respect to costs. The Defendants submissions should be received within 14 days of the release of this decision and the Plaintiff’s within 21 days.

Broad, J.

Released: May 30, 2012