COURT FILE NO.: CV-09-373222
DATE: 20130618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COSTA TSAKIRIS
Plaintiff
– and –
DELOITTE & TOUCHE LLP
Defendant
William Gale for the Plaintiff
Greg McGinnis for the Defendant
HEARD: May 14 - 17, 21 - 22 and 24, 2013
Penny J.
[1] This is an action for wrongful dismissal. There are three issues:
(1) Did the defendant have cause to dismiss the plaintiff?
(2) If not,
(a) to what period of notice was the plaintiff entitled?
(b) to what outstanding bonus or commissions was the plaintiff entitled, if any? and,
(c) did the plaintiff fail to mitigate his damages? and
(3) Does the defendant owe the plaintiff overtime pay under Part VIII, section 22 of the Employment Standards Act, 2000, S.O. 2000, c.41 (ESA)?
[2] For the reasons that follow, I find:
the defendant did not have just cause to terminate the plaintiff’s employment;
the period of notice to which the plaintiff is entitled is 10 months; and
the plaintiff is not entitled to overtime pay under the ESA.
Background
[3] The plaintiff obtained a Master of Taxation degree from the University of Waterloo in 2000. He was a co-op student at Arthur Anderson in September 1999 and was hired by Arthur Anderson as a senior associate in international tax following his graduation in May 2000.
[4] In June 2002, Arthur Anderson merged with Deloitte & Touche LLP (the defendant) and the Arthur Anderson employees and partners joined the defendant.
[5] The defendant is a partnership providing audit, tax, accounting, and financial advisory services. Within the tax line of business, the defendant has a number of sub-services including mergers and acquisitions, transfer pricing and international tax services. The international tax services group (ITSG) was comprised of dedicated partners, associate partners, senior managers, managers, senior associates and analysts. The ITSG also called upon external resources (both within and outside Deloitte) from time to time as needed.
[6] In August 2002, the plaintiff was promoted from senior associate to manager.
[7] In September 2005, the plaintiff received another promotion, this time to senior manager.
[8] In late 2007, the plaintiff became embroiled in a controversy about his expense claims. As a result, the plaintiff received a reprimand and was put on probation. This was done in the form of a “personal improvement plan” letter, or PIP, dated February 24, 2008, which set out the identified problems and Deloitte’s expectations of the plaintiff in relation to those problems. The PIP stated that failure to observe the required protocols would result in immediate termination with cause.
[9] In June 2008, one of the partners noticed further anomalies in the plaintiff’s expense claims. The partner consulted with other partners, the human resources department and legal counsel. The result of these consultations was a decision to terminate the plaintiff’s employment with cause.
[10] The termination took place on July 4, 2008. The plaintiff was 33 years of age at that time and had worked for Deloitte (and Arthur Anderson) for approximately eight years.
[11] This action was commenced in 2009. Although the plaintiff took on some sporadic consulting work following his release from the defendant, he did not become fully employed until September 2009 when he accepted a job at a boutique accounting firm. That job did not work out after several months. It was not until November 2010 that the plaintiff became fully employed again.
1. Did the defendant have cause to terminate the plaintiff’s employment?
Deloitte’s Expense Claim Policy
[12] Deloitte had a business travel and expense reimbursement policy. Under the policy, the firm agreed to reimburse employees for expenses incurred when the employee was required to work out of town, significantly beyond the normal closing time, or on Saturday, Sunday or holidays. Expense reports were supposed to be prepared on a weekly basis and the policy provided that any expense reported more than 60 days after being incurred “may not be reimbursed to the individual.” The filing of a fraudulent expense report was cause for immediate dismissal.
[13] Regardless of who actually prepared the expense report, the individual reporting the expenses was required to review the report for accuracy and to sign it.
[14] Employees were entitled to reimbursement of a dinner allowance when required to work nights on a regular work day. Similarly, employees were entitled to reimbursement for lunch expenses during weekend and holiday work.
[15] The firm encouraged activities with clients and others which might assist in business development. Accordingly, employees were entitled to charge the cost of client entertainment and other business expenses related to clients to the mandate code for that client even when such amounts were not going to be billed to the client. This was to enable the engagement partner to determine if such expenses enhanced profitability.
[16] Most of the ITSG’s client files were billed on a fixed fee basis. Accordingly, other than travel, hotel and meal expenses directly related to travel to a U.S. client’s offices in connection with a specific project, meals and other business expenses, even when charged to a client mandate, were not billed to the client.
[17] The policy also addressed firm expenses that would not be charged to a client mandate. Occasional entertainment of staff members in connection with specific events as well as lunches or dinners related to the firm’s business (mentoring, performance review, and the like) were generally considered reimbursable firm expenses. The firm had established non-client codes for activities such as business development, performance reviews, team-building and other administrative functions.
[18] Mr. Domazet, a partner and the plaintiff’s performance coach at the time of termination, testified that it was permissible, and common practice, to expense normal workday lunches with colleagues: a) to a client mandate, if client work was discussed; or b) to a firm mandate, if career or performance issues, or other firm business, was discussed.
Plaintiff’s Expense Claims Leading to the PIP
[19] In 2005, 2006 and 2007, the plaintiff submitted expense reports for reimbursement. Contrary to firm policy, these claims were almost always submitted long after the expenses were incurred. They were, however, typically reimbursed.
[20] In every case, the plaintiff signed his expense reports and submitted them for approval to a partner. The evidence of Mr. Schwichtenberg and Mr. Ancimer, the partners who signed the plaintiff’s expense reports, was that they conducted a quick, cursory review, essentially looking for large or obviously unusual expenses.
[21] They performed only a cursory review, in part, because a detailed review was performed by a dedicated group in the accounting department responsible for monitoring all expense reports and processing payments.
[22] Eventually, in November 2007, Mr. Schwichtenberg was approached by a member of this accounting group, who outlined a number of concerns with the plaintiff’s recent expense reports. Mr. Schwichtenberg was the partner in Toronto responsible for human resource matters. He also worked closely with the plaintiff on client matters. In short, it was revealed, and ultimately admitted by the plaintiff, that the plaintiff had routinely defaced the supporting receipts for many of his expense claims (mostly meals) in order to obscure the date or time of the expense. The plaintiff achieved the concealment of the date or time on the receipts by tearing off the date/time portion of the receipt, punching it out with a pen or pencil or writing over the time date/time in heavy ink. The plaintiff’s meal expenses were almost invariably charged to a client mandate.
[23] The precise nature of these expenses is obscure although there is a strong inference to be drawn that many of these expenses were personal in nature. This is admittedly so in the case of a number of weekend meals where the plaintiff took his girlfriend or his mother to dinner and charged that expense to a client mandate.
[24] The plaintiff claimed to have held a reasonable belief that his expenses were all appropriate. As justification for claiming reimbursement for weekend meals with his girlfriend, for example, the plaintiff testified that, on one occasion, Mr. Schwichtenberg told him to charge dinner with his girlfriend to the client mandate on which the plaintiff had put in a lot of work that weekend.[^1]
[25] The head of the Toronto tax department, Mr. Dunn, and others took the view that the plaintiff had committed a serious breach of firm policy which was completely inconsistent with the trust and probity expected of employees working for a public accounting firm. Mr. Dunn wanted to terminate the plaintiff’s employment for cause. The partners who worked most closely with the plaintiff, however, Mr. Schwichtenberg, Mr. Ancimer and Mr. Domazet, “went to bat” for the plaintiff, arguing that he should be given a second chance in the form of a reprimand and probation.
[26] Whether the plaintiff’s conduct in 2005 to 2007 regarding his defaced expense claims constituted cause for his termination need not be resolved in this case because, in the end, the defendant chose not to terminate the plaintiff’s employment at that point. The view of the ITSG partners prevailed and the plaintiff was given a “second chance.”
[27] I find, however, because it is arguably relevant to what ultimately transpired, that the plaintiff did not have a reasonable belief in the propriety of his expense claims. His justifications were weak and self-serving at best. The fact that the plaintiff admittedly defaced the receipts to conceal their proper date or time is completely inconsistent with a belief in the propriety of those expenses. The plaintiff’s evidence, that he defaced the receipts to obscure relevant information in order to “avoid questions” from the accounting department and to expedite the payment of his expenses is, in substance, an admission that he intentionally concealed relevant information on his expense reports to obtain a personal benefit to which he knew, or ought reasonably to have known, he was not entitled.
The PIP
[28] In December 2007, as part of the investigation process surrounding the challenged expense reports, the plaintiff had a long and at times heated meeting with Mr. Ancimer and Mr. Domazet. Following that meeting, Deloitte decided on the reprimand/probation approach.
[29] Accordingly, on February 27, 2008, the plaintiff received a written reprimand and warning (the PIP) from Mr. Ancimer, head of the Toronto ITSG. The letter expressed significant concerns regarding the plaintiff’s performance as senior manager and the need for the plaintiff to work toward bringing his performance to the appropriate standard. Among these significant concerns were the “timing and inappropriate submission of business related expenses” and the plaintiff’s “considerable lack of judgment in this regard.”
[30] Deloitte’s concerns were specifically identified in the letter as:
• time reporting is not complete and in particular non-client time is not being recorded,
• expense submission is not in accordance with a firm expense policy,
• duplicate expense claims have been submitted,
• expenses billed to the client where no time has been billed to the same client,
• expense receipts have been altered.
[31] The letter went on to identify “minimum expectations for improvement” as follows:
• you will enter all your time in accordance with the Firm standards and in particular all non-client related time must be reported,
• you will release your time on a weekly basis,
• you will review the Firm expense policy,
• you will submit business-related expenses in accordance with the Firm expense policy,
• you will complete and submit your expenses within one week after the end of each period to Kerry Schwichtenberg for final approval and sign off.
[32] The PIP went on to conclude:
It is critical that we see a sustained improvement in your performance and I have no doubt that you will work hard to get there. However, these issues are serious. We will monitor your performance on an ongoing basis. Should you not meet the expectations as outlined above, your continued employment with the firm will be evaluated and may result in dismissal for cause from Deloitte & Touche LLP.
If any of the above is unclear to you or you are having difficulty meeting these expectations please contact me as soon as possible.
[33] The plaintiff met with Mr. Schwichtenberg on February 27, 2008 to receive the letter and reprimand. Mr. Schwichtenberg went through the letter with the plaintiff and impressed upon him the importance of the concerns and the need for demonstrated improvement and compliance with the PIP.
Plaintiff’s Expense Claims Leading to the Termination (Post-PIP)
[34] Following the PIP, the plaintiff continued with his responsibilities as senior manager. He was, in fact, asked to take on a significant managerial role as work allocation coordinator for other managers and senior managers. In March and April 2008, the plaintiff submitted expense reports which were reviewed and found to be compliant with the PIP and firm policy.
[35] In June 2008, however, the plaintiff submitted two expense claims to Mr. Schwichtenberg for approval which proved to be problematic.
[36] These expense reports, Exhibit 1, Tabs 23 and 24, contained claims for reimbursement which were, on their face, significantly out of time. Mr. Schwichtenberg testified that on his initial review he noticed that many of the expenses for which reimbursement was sought were over a year old. This caused him to take a more detailed look at the expense report.
[37] It was during this more detailed inspection that Mr. Schwichtenberg noticed what he called “inconsistencies.” The most obvious problems involved a number of meal receipts charged to client mandates on which the identified attendees clearly had nothing to do with the client or work being done for the client. Mr. Schwichtenberg quickly concluded that this represented a continuation of the behaviour which had been prohibited by the PIP. He testified that this made him feel angry and disappointed because he had gone to bat for the plaintiff and felt he was now being let down.
[38] Mr. Schwichtenberg took the expense reports to Mr. Ancimer and shared his concerns. Mr. Ancimer confirmed a number of circumstances in which the plaintiff’s meal receipts, charged to a client mandate, noted attendees who had nothing to do with the client. Mr. Ancimer also quickly concluded that the expense reports were offside Deloitte policy and the requirements of the PIP. He too was angry and disappointed with the plaintiff because of the perceived breaches of policy and directives in the PIP.
[39] Mr. Schwichtenberg turned the expense reports over to Ms. Evans, who had replaced Mr. Dunn as head of the Toronto tax group. Ms. Evans, in consultation with human resources and legal personnel, determined over the course of the next few weeks that the terms of the PIP and Deloitte’s expense reimbursement policy had been breached and that, in the circumstances, the plaintiff must be terminated for cause.
[40] Importantly, in my view, no one at any stage of the process asked Mr. Tsakiris for an explanation of his expense reports or the perceived anomalies with them.
[41] The plaintiff’s employment was terminated on July 4, 2008. Ms. Evans gave the plaintiff a letter providing formal notice that, effective immediately, his employment as a senior manager with Deloitte was terminated for cause. The letter summarized the reasons in paragraph two:
You have not adhered to the terms and conditions set out in the performance improvement letter dated February 27, 2008. To date we have not seen sustained improvement in your performance. As previously discussed with you, the issues identified were serious and required immediate correction on your part. Your lack of judgment and disregard of the firm’s expense policy is unacceptable and cannot be tolerated.
Governing Legal Principles
[42] The parties agree that the governing legal principles are found in McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161 and Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 CanLII 43692 (ON CA), 2004 O.J. No. 4812 (C.A.).
[43] McKinley resolved the issue of whether misconduct or dishonesty constitutes per se grounds for termination with cause or whether the nature and context of the misconduct is important in determining whether the challenged conduct constitutes just cause.
[44] Justice Iacobucci, writing for the Court, held that whether an employer is justified in dismissing an employee on grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. The test for cause is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. For example, just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer.
[45] The seriousness of the misconduct, therefore, must be assessed and this requires the facts established at trial to be carefully considered and balanced. This assessment necessarily requires an examination of the nature and circumstances of the misconduct. Absent this analysis, it is impossible for a court to conclude that the dishonesty was sufficiently severe in nature to justify dismissal without notice.
[46] The Court also introduced into this assessment the principle of proportionality. Justice Iacobucci held that an effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed. This is important, he said, because of the sense of identity and self-worth individuals frequently derive from their employment. He concluded, at para. 57:
Based on the foregoing considerations, I favour an analytical framework that examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship. Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behaviour with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.
[47] On the particular facts of that case, the Court found that while the dismissed employee might not have made full disclosure of all material facts (his health status), full disclosure was not required of him. Rather, the Court said, the question is whether the dismissed employee engaged in dishonesty in a manner that undermined, or was incompatible with, his employment relationship. The court determined, at para. 69, “an analysis of the record as a whole leads me to conclude that the jury, acting judicially, could have reasonably found that this was not the case. For this reason, there is no basis upon which to interfere with the jury's verdict that the respondents [employer] had not proven just cause warranting dismissal.” The employee’s appeal was allowed.
[48] Dowling confirmed and expanded upon the approach adopted in McKinley. The Court of Appeal stated in Dowling, at para. 50, that the application of the McKinley standard consists of the following:
(1) determining the nature and extent of the misconduct;
(2) considering the surrounding circumstances; and,
(3) deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).
[49] Thus, the Court said, the issue is not whether the reason for termination given by the employer has been proved but whether all of the misconduct, considered in context, was sufficiently serious that it gave rise to a breakdown in the employment relationship sufficient to warrant termination with cause.
Analysis
The Nature and Extent of the Alleged Misconduct
[50] The nature and extent of the alleged misconduct in this case involves some consideration of the plaintiff’s pre-PIP behaviour but more importantly, a close analysis of the nature and extent of the subsequent conduct which brought about the termination.
[51] An important feature of the plaintiff's June 2008 expense reports which, it is conceded, distinguish them from his November 2007 expense reports, is the absence of any defacing of the receipts or any apparent attempt to deceive or conceal.
[52] In each case of alleged “inconsistency” in the June 2008 expense reports, the date and time of the receipt is clear. The attendees at the impugned meals are clearly and unambiguously disclosed. In each relevant case, the fact that the guest at the meal was not a Deloitte client or employee was also plainly disclosed.
[53] The plaintiff testified that he had lunch with several people in the hopes of attracting them to work at Deloitte (recruitment) or to bring business to Deloitte (business development of potential clients). Both categories of expense are recognized by the firm's policy and by partner testimony during the trial to be legitimate reimbursable expenses.
[54] The plaintiff testified that he charged these expenses to client mandates for want of anywhere else to put them. His testimony to the effect that he was never instructed on the use of non-client codes was not challenged. In the case of lunch with potential clients, he charged the lunch to an existing client mandate with the intention of transferring the charge in the future if a new client file was opened. Through partner testimony, this practice too was confirmed to be an acceptable and common administrative practice at Deloitte.
[55] Regarding the delay in submitting a number of his expense claims, there is a factual dispute between Mr. Schwichtenberg and the plaintiff. The plaintiff says that he raised the issue of submitting old expense claims with Mr. Schwichtenberg on a business trip post-PIP and was told to go ahead and put them in. Mr. Schwichtenberg denies that he gave any permission.
[56] It is not necessary for the disposition of this case to resolve that particular dispute. I say this is for two reasons.
[57] First, although the PIP did require the plaintiff to get his expense claims in on a weekly basis and the submission in June 2008 of very old expense claims was contrary to the policy and the PIP, the defendant does not rely on the lateness of the expense submissions per se as cause for termination without notice. Rather, the defendant relies upon a more pointed and specific problem which I will deal with below.
[58] Second, even if the defendant relied on a breach of the timeliness requirements of the PIP, that breach alone would not, in my view, constitute grounds for termination without notice.
[59] That is because the firm’s expense policy plainly allows the firm to deny reimbursement for any expenses submitted late. Accordingly, if timeliness were the only issue, the defendant had available to it a more proportional response to the request for reimbursement of old expenses – simply to deny reimbursement.
[60] The essence of the defendant’s claim to have cause for termination in July 2008 is that, in the context of the plaintiff’s pre-PIP, admittedly more egregious, behaviour, the plaintiff submitted these expenses long after the fact allegedly without knowing whether they were or were not legitimate business expenses.
[61] This argument is founded on the fact that the plaintiff admits that he wrote the names of the attendees at the meals represented by the impugned receipts immediately prior to submitting them for reimbursement in June 2008. Since the expenses were incurred months before he did this, the defendant argues, the plaintiff could not possibly have attributed the attendees or the purposes of the lunch accurately. This, the defendant argues, is conduct which, although not identical to the pre-PIP behaviour, shows a similar lack of probity (or at least recklessness about the firm’s policies and interests). In context, given the past conduct for which the plaintiff was put on probation, Deloitte argues that these actions went to the very heart of the employment relationship and warranted dismissal without notice.
[62] The plaintiff says that he recorded the purpose for and attendees at these meals contemporaneously on an informal “log” or slip of paper. This evidence is challenged by the defendant on the basis that this explanation was given only recently and is inconsistent with prior evidence given by the plaintiff under oath on discovery.
[63] I find the plaintiff’s explanation of a log difficult to accept for two reasons. First, it makes no sense for the plaintiff to have recorded events relating to these meals on a separate piece of paper when he had the actual receipts available to him at the time. Second, I agree with the defendant’s submission that this explanation was given in answers to undertakings just prior to the commencement of trial and is inconsistent with sworn testimony given by him in discovery some time ago.
[64] This, however, does not resolve the matter. The plaintiff’s discovery evidence, which I accept as more likely to be true, still provides some basis for the plaintiff’s allocation of people and purpose to these expenses. Importantly, the types of expenses involved were justifiable under the firm’s policy. Although the plaintiff may have misallocated them to the wrong mandate, given the evidence that these expenses were almost never billed to the client in any event, I do not think this misallocation shows untrustworthiness or lack of probity sufficient to constitute just cause.
[65] Most importantly, it is defendant’s onus to prove cause. The defendant has not proved that these expenses were inappropriate. The most it has proved is that, due to the effluxion of time, there is a risk that the expenses might not have been properly allocated. The defendant did not confront the plaintiff with these anomalies at the time of his termination and gave the plaintiff no opportunity to explain the context in which the expenses were incurred. The nature and extent of the alleged misconduct does not, on this evidence, constitute cause or serve as appropriate grounds for termination without notice.
The Surrounding Circumstances
[66] I have already touched on the most pertinent surrounding circumstances. The plaintiff’s explanations of the impugned expenses in substance fall generally within the scope of accepted policy and practice at Deloitte. Although the expenses were misallocated (client mandate rather than non-client mandate), this had no adverse impact on Deloitte. The character of the challenged June 2008 expenses is essentially different from that of the plaintiff’s pre-PIP expense irregularities. There was, I find, no evidence of intent to conceal or mislead as to the true nature of the expenses. The plaintiff was given no opportunity to explain or respond to Deloitte’s concerns. The surrounding circumstances, like the nature and extent of the infractions themselves, suggest that termination without notice was not justified.
Is Dismissal a Proportionate Response?
[67] Had the evidence shown a repeat of conduct of the same character as the pre-PIP conduct (defacing and obscuring relevant information on receipts), I would have had no hesitation in concluding that termination without notice was entirely proportional. Such conduct would have been inconsistent with the warnings given and with the trust and probity required of a senior manager in a public accounting firm.
[68] Given the nature of the June 2008 infractions, as disclosed by the evidence, however, the ultimate sanction was not warranted. Other, less drastic measures were available. The expenses were not and need not have been reimbursed. Further, more specific warnings or instruction on the use of non-client mandate codes could have been undertaken.
[69] This factor, therefore, also suggests that termination for cause was not warranted.
Conclusion
[70] For these reasons, I conclude that just cause for termination has not been proven by the defendant. The defendant was at liberty to terminate the plaintiff’s employment but only on reasonable notice or the payment of compensation in lieu of reasonable notice.
2(a). To what period of notice was the plaintiff entitled?
Governing Legal Principles
[71] At common law it is an implied term of every contract of employment that, when ending an employment relationship without cause, the employer will give reasonable notice of the termination or pay compensation in lieu of notice.
[72] The purpose of the reasonable notice requirement is to give the dismissed employee an opportunity to find other employment: McKay v. Camco, Inc. (1986), 1986 CanLII 2544 (ON CA), 53 O.R. (2d) 257 (C.A.), at p. 267; Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505 (C.A.), at p. 531.
[73] The leading statement of the factors to be taken into account when determining reasonable notice is found in Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.) per McRuer C.J.O., at para. 21:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the 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 to the experience, training and qualifications of the servant.
[74] The Court of Appeal in Love v. Acuity Investment Management Inc., 2011 ONCA 130, [2011] O.J. No. 771, emphasized the need to take into account all of these factors and not, for example, to overemphasize length of service and underemphasize the character of the employment.
[75] Comparing ‘length of service’ awards in other cases must be done with great care because, while length of service may be subject to mathematical precision, other relevant factors that must go into the determination of notice (i.e., the character of the employment and the availability of other employment) are not. Length of service, therefore, must not be given disproportionate weight.
Analysis
[76] In this case, the plaintiff’s work was highly specialized. At Deloitte he operated at the highest level below partner, that of senior manager.
[77] As senior manager, the plaintiff was expected to initiate complex tax planning strategies, mostly for U.S. clients, to develop tax plans in consultation with the client and to “sell” the plan to the client. It was his responsibility, once a new tax plan concept was approved, to develop a proposal which included numbers of and recommended staffing for the project, a budget and recommended pricing. He was also expected to implement the proposal, instruct and draw on relevant resources, oversee and manage the work of others working on the project, solve unforeseen problems in consultation with the client and prepare a penultimate draft of the final opinion/technical memo for final partner review. The plaintiff was also responsible for preparing a draft of the client’s bill for final partner review. The character of the employment, being so specialized and embodying a great deal of responsibility, is a factor tending toward a longer period of notice.
[78] The plaintiff was hired on by Deloitte from another firm with which there was some form of merger. There was no evidence of any severance arrangements made at the time of the merger. As a result, it must be assumed that Deloitte took on the plaintiff’s prior service liability when it hired him. The relevant period of service, therefore, is eight years. This is a moderate period of service in the scheme of things, suggesting a similarly moderate period of notice.
[79] The plaintiff was 33 years of age at the time of his termination. His relative youth tends to support a higher probability of prompt re-employment and, therefore, may be taken to support a shorter period of notice.
[80] The plaintiff’s highly specialized experience, training and qualifications and the significant remuneration he was being paid in 2008 (in the $200,000 range) suggest that the number of comparable positions might be relatively restricted. There was some evidence from a recruiter, called as a witness by the plaintiff, to the effect that tax specialists, particularly ones whose strengths, like the plaintiff’s, are in client relations and sales, were something of a hot commodity. However, the evidence also suggested that international tax practices are concentrated in a relatively small number of firms.
[81] In this case, the evidence was that opportunities with other large public accounting firms for comparable employment did not pan out for the plaintiff. This was at least in part on account of the inability/unwillingness of Deloitte to give him a positive recommendation (given the circumstances of his termination).
[82] Another consideration in assessing the likelihood of obtaining similar employment is how long it actually took the plaintiff to find full-time work. This consideration is, of course, subject to the legal obligation to act reasonably in seeking to mitigate damages, as well as the overall reasonable limitation posed by law on the length of notice in particular cases. It is, nevertheless, one piece of evidence to consider when determining the likelihood of finding alternative, comparable work. In this case, the plaintiff did not obtain full-time employment until September 2009. That job, however, did not work out and he did not find another full time job until November 2010.
[83] All in all, in my view, the ‘availability of similar employment’ is a factor which tends to lengthen the appropriate period of notice.
Conclusion
[84] Having regard to the plaintiff’s age of 33, his eight years of service, the “senior management” nature of his role at Deloitte and the highly specialized nature of the work, including the impact of these circumstances on his likelihood of finding new employment, an appropriate period of notice is ten months.
[85] Based on the agreed-upon amounts provided during argument, it appears to me that the amount of salary and benefits, less mitigation actually earned, due to the plaintiff in lieu of 10 months’ notice is $93,284.67.
2(b). What bonus or commission payments were outstanding, if any?
Governing Legal Principles
[86] It is well-established that, even in a circumstance where there has been a breach of fiduciary duty, an employer is not free to withhold payment of wages due for past performance. The treatment of bonus and commission depends on the extent to which these payments are found to be discretionary. Bonus and commission payments may be considered in the same category as wages, for example, where a bonus amounts to the principal form of compensation.
Analysis
[87] The plaintiff earned additional compensation above his base salary in two ways.
[88] First, the plaintiff was able to earn bonus on the basis of an incentive target which rewarded him based on personal incentive achievement and the firm’s performance as a whole in achieving budget.
[89] The second supplementary income came from the plaintiff’s efforts in a program called client service matrix (CSM). This operated like a commission on “sales” of new tax products to clients. The plaintiff had historically been one of the top performers in earning CSM income at Deloitte.
[90] The plaintiff’s 2007/2008 base salary was $140,000. There was no evidence about what his 2008/2009 salary might have been. However, while the results of the annual performance review process had not been finalized, there was evidence that, in the absence of the June 2008 expense report issue, the plaintiff would have been ranked as a strong performer (SP).
[91] The evidence was that the plaintiff’s bonus target incentive, assuming achievement of 100% of the firm’s budget and a rating of SP, would be $21,000.
[92] I accept the plaintiff’s argument that although his 2007/2008 rank had not been officially finalized the substance of his performance review had been concluded. The evidence showed, unambiguously, that he was proposed to be ranked SP immediately prior to the events leading to his termination.
[93] There was, however, no evidence on the firm’s performance vis-à-vis budget for the 2007/2008 year. The only evidence was that for the 2006/2007 year, the plaintiff’s bonus payout was based on an achievement by the firm of 71.50% of budget. In the absence of any evidence to the contrary, this is the best evidence of what the firm achieved, or was likely to achieve, in 2007/2008 as well.
[94] Accordingly, for bonus calculation purposes, I find that the plaintiff achieved a rank of SP for the 2007/2008 year and that the bonus payment should be based on the same 71.50% factor used in 2006/2007. This, by my calculation, produces a figure of $15,015.
[95] The CSM program was designed to promote idea sharing, team play and exceptional client service in the form of value added tax planning ideas “sold” to clients on a proactive basis. The CSM program had a monetary cap and various other constraints. Among other things, it was calculated only on amounts billed to and collected from clients.
[96] Payments were based on a 10% commission; no more than 5% commission could be paid to any one individual. The senior manager of a qualifying project was expected to request a CSM payment for that project and provide a proposed allocation of the CSM payment between members of the project team. Historically, the plaintiff proposed, and received, 5% of each CSM payment claimed in connection with a tax plan initiated by him.
[97] In this litigation the plaintiff made two claims in connection with outstanding CSM payments. First, he claimed an amount representing the difference between the 5% he proposed by way of allocation to himself and 4% which, he says, was allowed by Deloitte in its last payments to him. Second, the plaintiff claimed CSM payments in respect of a number of projects initiated by him for which, he maintained, he has received no compensation.
[98] The CSM document made available to employees stipulates that a request for a CSM payment must be submitted to the partner involved for approval. The policy goes on to say that once approved by the partner involved, “the form is sent to the local office CSM coordinator for processing.” There is no mention of the discretion of other partners, or the managing partner, to intervene and alter what the “involved partner” has approved.
[99] In this case, there was evidence of communications between Mr. Dunn and Mr. Ancimer prior to the termination about whether the plaintiff should get 5% (the maximum for one person) of CSM being claimed. Mr. Ancimer, responding to Mr. Dunn’s query, said, among other things, “This is Costa’s strength and he does very well at it. Setting aside the performance issues in other areas, he very clearly deserves these payments.”
[100] While there is no doubt that Deloitte was entitled to cancel this program at any time, I am not satisfied that Deloitte was entitled to arbitrarily intervene in an approved allocation so as to reduce any one person’s entitlement other than in accordance with the published policy.
[101] For this reason, I find that the reduction of the amount of CSM actually paid to the plaintiff just prior to his dismissal from 5% to 4% was arbitrary and inappropriate. The plaintiff was entitled to a CSM payment based on the allocation approved by Mr. Ancimer of 5%.
[102] I am not satisfied that the evidence was sufficiently clear to enable me to calculate the specific amount of the outstanding payment owed. If the parties are unable to agree on the specific amount, they may arrange for an attendance before me or make written submissions, as needed, in order to clarify what the 1% difference represents in dollars and cents.
[103] The second category of CSM payments claimed relates to five projects for which the plaintiff never submitted a CSM proposal because the termination of his employment intervened. These were outlined by the plaintiff in an August 19, 2008 e-mail to the human resource director of the Toronto office.
[104] The evidence of Deloitte was that, apart from the 1% differential, its records showed that all CSM earned prior to the cancellation of this program had been paid.
[105] During the trial, this evidence was supplemented by specific evidence relating to one of the five projects to the effect that this project was never billed and no amount was ever paid by the client. Thus no CSM would have been payable. With respect to the other four, the partners who testified were unable to make any specific comments other than to say that as far as Deloitte was aware, no CSM was outstanding in connection with any of these projects.
[106] It is the plaintiff’s obligation to prove his damages. The plaintiff has had the benefit of extensive discovery and document production from Deloitte. The plaintiff’s August 19, 2006 e-mail alleging an entitlement and his testimony in the trial, which amounted to no more than his “belief” that he was entitled additional CSM payments, is completely inadequate to prove any entitlement to outstanding CSM.
[107] Accordingly, these claims have not been proved and are, therefore, dismissed.
Conclusion
[108] In conclusion on this issue, the plaintiff is entitled to $15,015 in respect of 2007/2008 bonus. He is also entitled to the outstanding 1% of the final CSM payments (which were based on a 4% rather than a 5% allocation to the plaintiff). There is no further entitlement to CSM payments.
2(c). Did the plaintiff fail to mitigate his damages?
Governing Legal Principles
[109] In an action for wrongful dismissal, the onus is on the plaintiff to prove damages. However, where an employer seeks to reduce damages on the ground that the employee failed to mitigate his or her losses, the onus is on the employer to prove on a balance of probabilities that the employee failed to mitigate by not acting reasonably.
[110] The duty to act reasonably in seeking and accepting alternate employment is not a duty owed to the former employer. Rather, it is a duty the employee owes to him or herself to take such steps as a reasonable person in the dismissed employee’s position would take in his or her own interests.
Analysis
[111] The plaintiff took all the normal steps to obtain new employment. The evidence was that he applied for many senior management-type roles, with an emphasis on international tax but in other areas as well. He contacted a number of recruiters for assistance.
[112] The defendant essentially made one substantial objection to the plaintiff’s job search activity which, it argues, is an indication of a failure to mitigate and which should shorten the period of notice to which plaintiff might otherwise be entitled.
[113] In December 2008 the plaintiff was offered a generalist tax position at MNP, a small accounting firm. The plaintiff testified that he understood, from advice received from recruiters, that there were potentially “big” opportunities for international tax roles at a large accounting firm opening up at about the same time. An international tax position at a large firm was the plaintiff’s preferred placement, since it most closely approximated the position and experience he had during the last eight years at Deloitte.
[114] While the plaintiff applied for and was willing to do the MNP job, it was not his first choice and he deferred acceptance of that job, hoping one of the other opportunities at a larger firm in international tax might materialize. In the end, however, the plaintiff testified that he reached the point where he could not defer acceptance any longer. He declined the MNP position because he did not think it was right to accept it while he was continuing to look for a preferable position, thereby running the risk of having to repudiate MNP within a relatively short period of having accepted a job there.
[115] The defendant argues that, while this may have been a valid risk for the plaintiff to take on for himself, it was not a reasonable risk to impose on Deloitte in the mitigation context. In effect, Deloitte argues that the plaintiff, from a mitigation point of view, was obliged to adopt a ‘bird in the hand’ approach. The plaintiff applied for the MNP job, which is evidence that he considered it a reasonable career choice. Having admitted it was a reasonable job, Deloitte argues, the plaintiff was for mitigation purposes at least required to accept it. Deloitte argues, therefore, that the period of notice should not extend past the date of the plaintiff’s decision not to accept the MNP position, i.e., December 2008.
[116] Deloitte relies upon the decision of the British Columbia Court of Appeal in Coutts v. Brian Jessel Autosports Inc., 2005 BCCA 224, [2005] B.C.J. No. 828.
[117] While I quite agree that a dismissed employee cannot impose unreasonable risks on his or her former employer when it comes to the obligation to mitigate by holding out for unrealistic career aspirations, the question is whether the dismissed employee has acted reasonably in refusing to accept a new position.
[118] In Coutts, the dismissed employee refused to follow through with employment opportunities in the employee’s accustomed line of work and held out for a new position in a different sort of firm that had not yet even come into existence. The Court found that Coutts’s hopes of securing employment with this new firm were “both unrealistic and unreasonable.”
[119] In the circumstances of this case, the MNP offer came in December 2008, only five months into the plaintiff’s job search. At that point in time, the prospects for an international tax position with a large public accounting firm had not yet been exhausted. The plaintiff, on the evidence, held a reasonable belief based on advice from his recruiters that some international tax openings were in the offing. Unlike the facts of the Coutts case, this anticipated opportunity was precisely in the plaintiff’s “chosen line of work” for the last eight years.
[120] The plaintiff was entitled to seek a position commensurate with his level of expertise and skills and was not obliged to seek a lesser paying, generalist position until he had completed a reasonable search for comparable employment.
[121] In all the circumstances, I do not think it was unreasonable for the plaintiff to decline the MNP job in the (not unreasonable at that point) hope that a preferred, higher priority job more like what he had done before might yet materialize.
Conclusion
[122] Accordingly, I find that the plaintiff’s conduct in searching for alternate employment was reasonable and that the plaintiff did not fail to mitigate his damages.
3. Is the plaintiff entitled to overtime pay under the Employment Standards Act?
Legislative Entitlement
[123] Part VIII of the ESA deals with overtime pay. Section 22 provides that “an employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each week.”
The Exemption
[124] Section 8 of O. Reg. 285/01 provides that Part VIII of the ESA (which includes s. 22) “does not apply to … (b) a person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.”
The Plaintiff’s Position
[125] The plaintiff argues, on the basis of this legislation, that although he occupied the position of senior manager, his job was not supervisory or managerial in character. In the alternative, the plaintiff argues that, even if his job was supervisory or managerial, he performed non-managerial/non-supervisory functions frequently in the ordinary course of his employment. Either way, he says, the exemption from entitlement to overtime for supervisory or managerial work is inapplicable to him. He asserts, therefore, that because he regularly worked in excess of 44 hours per week he is entitled to overtime pay for the last two years prior to his termination.
The Case Law
[126] No decisions of the Ontario Superior Court of Justice dealing with these provisions were cited to me in argument. Counsel advised me that they had been able to find only decisions of the Ontario Labour Relations Board in the context of administrative applications for review under s. 116(1) of the ESA from orders to pay issued by employment standards officers.
[127] One of these decisions, however, Tri Roc Electric Ltd., [2003] O.E.S.A.D. No. 1002, cites the Divisional Court decision in Kennedy v. William C. Cavell Enterprises Ltd., [1987] O.J. No. 1050, 18 C.C.E.L. 52. Although Kennedy deals with an earlier, slightly different version of this legislation, in a passage still apposite under the current legislation, at paras. 12-13, the Divisional Court made the point that the characterization of work as supervisory or managerial in character must be made having regard to the whole of the work performed and the overall character of the work:
The character of a job does not just mean the individual acts that make up the particular job. “Character” means feature, trait, essential peculiarity, nature, sort. One single non-managerial act does not necessarily destroy the essential nature of the job as being only managerial in character. If the managing editor of the New York Times writes a single editorial or reports a single story, that does not necessarily destroy the essential character of his job as being only managerial. It is a question of degree.
So long as it is a question of degree, it is a question of fact in each case whether or not the performance of a traditionally non-managerial act destroys the character of a job as being only managerial.
[128] The new regulation (in 2001) added a similar concept in its chosen language. This is contained in the exemption language “and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.” The ESA Policy Manual on these changes comments that the new overtime exemption language was intended to clarify that the managerial exemption still applies even if the individual is not exclusively performing managerial or supervisory work. Non-supervisory or non-managerial duties may be performed so long as they are being performed outside of the ordinary course of the employee’s duties.
[129] Consistent with this guidance from the Policy Manual, the OLRB also said in the Tri Roc decision that the clear implication of this proviso is that the regular performance of non-managerial duties in the ordinary course of an employee’s work would render the exception inapplicable.
[130] The OLRB jurisprudence has, therefore, evolved in such a way as to provide for a two-step inquiry: first, there must be a determination of whether the “character” of the employment is managerial or supervisory; second, if the answer to the first question is yes, there must be a determination of (a) whether the individual performs non-managerial or non-supervisory tasks, and, if yes, (b) whether these tasks are done on an irregular or exceptional basis.
[131] The ESA is intended to establish fair, minimum standards of employment in order to remedy the unequal bargaining position of individual, non-organized, employees in relation to their employers: Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, at para. 31.
[132] In light of this underlying purpose, it is clear that the reason for the managerial/supervisory exemption is that such employees do not ordinarily fall within the ambit of the group requiring protection. This is because managerial and supervisory employees generally direct and operate the business enterprise. Because they have the power and responsibility to direct, supervise and manage and are paid accordingly, managerial employees do not require the protection afforded to rank and file employees and so they are exempt from the overtime protections incorporated into s. 22 of the ESA.
[133] Similarly, the proviso in the regulations which denies the exemption to employees who perform non-supervisory or non-managerial tasks on a regular or non-exceptional basis in the ordinary course of their employment, must be understood as a means of protecting employees from such things as inaccurate or “strategic” characterizations of their job responsibilities so as to “end run” the overtime protections incorporated into the legislation. The question posed by the combined effect of s. 22 of the ESA and s. 8(b) of O. Reg. 85/01 is whether, in substance, the nature of the employment is truly supervisory or managerial in character – if it is, the exemption applies and the overtime pay provisions do not; if it is not, the exemption does not apply and the overtime pay provisions do.
Analysis
[134] With these principles in mind, I turn to the factual enquiry required to determine whether the plaintiff’s job was truly supervisory or managerial in character.
[135] The plaintiff testified that his responsibilities did not change in any substantive way after he became a senior manager in 2005. He also maintained that no employees reported to him, he had no authority to assign work to others, he could not hire or fire employees and he could essentially do nothing without partner approval at every step of an assignment.
[136] I found the plaintiff’s evidence about his responsibilities as senior manager in the context of his overtime claim hard to accept. It is, first of all, highly self-serving. It is also inconsistent with the evidence he provided in support of his claim for a lengthy period of notice based on the nature and context of his employment, i.e., that he was a senior manager with significant managerial and supervisory responsibilities. It is also highly at odds with the documentary evidence and with the evidence of all three partners who testified at the trial concerning the role and responsibilities of a senior manager at Deloitte.
[137] The plaintiff earned $200,000 per year. His time was billed out at $650 per hour. He typically exceeded the firm’s minimums for billable hours. This contributed to his strong performance ratings and, therefore, his above average compensation.
[138] A significant portion of his compensation was incentive pay based on the sale of Deloitte ideas to clients under the CSM program, all of which was initiated by the plaintiff himself.
[139] The plaintiff admitted that while he was a manager, he was supervised and assigned work by senior managers.
[140] Deloitte published performance standards for all of its positions, including senior manager. The performance expectations of a senior manager fell into four basic categories; quality, talent, marketplace and financial.
[141] Within these four general categories, there were a number of subcategories and a series of specific expectations. A senior manager, for example, was responsible for providing superior client service including communicating feedback to the team, equipping the team with the necessary tools to deliver on client expectations, adhering to timelines and scope and delivering value to the client. The senior manager was responsible for initiating and conducting “lessons learned” meetings during each engagement to foster an environment of continuous improvement within the team. Senior managers were expected to be role models and to facilitate and support work/life balance for themselves and others. A senior manager was expected to identify and attract senior-level talent to the firm, to lead recruiting events and activities, to participate in retention activities and to take a leadership role in activities focused on improving the performance of others. The senior manager was also required to help team members to develop by providing them with ongoing feedback and aligning team members with the right development opportunities. The senior manager was also responsible for performance management and coaching of other employees.
[142] The plaintiff received both upstream and downstream feedback on these metrics.
[143] For example, all subordinate employees working with the plaintiff were asked, annually, to provide feedback on issues like: whether the plaintiff provided guidance on the job and took time to teach new and difficult tasks; set high technical standards; acted as a role model; and demonstrated ownership for professional work by actively monitoring progress and quality through each stage of the engagement.
[144] Junior staff was also asked to provide feedback on whether the plaintiff provided leadership to the team, showed employees how to create value for the client, expanded the employee’s understanding of products and services and set an example by placing a high priority on delivering high-quality service.
[145] Subordinate employees were also expected to evaluate the plaintiff on whether he built their organizational knowledge, clearly communicated performance expectations, actively promoted teamwork while encouraging individual contributions, supported their professional development, delegated tasks clearly, was an effective leader in decision-making and used his authority and influence positively and responsibly.
[146] In his annual performance review for 2007, the plaintiff himself indicated that he had demonstrated deep technical knowledge of U.S.-based multinational structured finance arrangements and the ability to develop trusted business advisor relationships with the client and Deloitte U.S.-based service teams. He claimed he had demonstrated an ability to form and lead large teams on complex engagements, had effective problem-solving and decision-making skills, established team deliverables that were challenging to all team members, actively managed the billing process to ensure the Canadian office received a reasonable fee for service delivery, actively involved the engagement team in all relevant matters and that he ensured all roles and responsibilities on the engagement were defined and provided constructive feedback to engagement team members.
[147] The plaintiff identified as one area for development, continuing to work on leveraging work to junior level resources and forming cohesive work teams.
[148] Similarly, in his 2008 performance review the plaintiff was expected to demonstrate an ability to guide and facilitate the preparation of work (e.g. project management, etc.), effectively use available resources and effectively delegate work by establishing team deliverables and milestones, explain objectives clearly, monitor progress and hold people accountable for results. He was also responsible for assigning tasks to team members that furthered their knowledge and skill development, achieving a climate of participation and team involvement in decision-making and communicating decisions and modifications relating to the project to the team in a timely manner.
[149] The plaintiff’s self-assessment in 2008 was that his delegation, work allocation and communication skills with staff were strong, that he created a teambuilding environment and that he had improved at involving managers, seniors and staff in projects on a timely basis.
[150] The plaintiff was asked to take on, and somewhat begrudgingly accepted, the role of work allocation manager for the ITSG in 2008.
[151] The evidence of the partners for and with whom plaintiff worked was that the plaintiff, as senior manager, was responsible for running each client engagement. The plaintiff did not take issue with the substance of this evidence. The senior manager formulated the client proposal, recommended how it should be staffed, set out a detailed analysis of the steps and the persons responsible, prepared a project budget, allocated work and managed the engagement in terms of personnel and work product, dealt with the client and with all necessary outside resources, prepared the final technical memo or opinion and prepared the final bill, subject to the engagement partners sign off.
[152] The plaintiff claimed that he could not hire or fire staff but, in a large organization like Deloitte, this was also true of any individual partner. Hiring, firing, final performance reviews, salary increases, bonuses, etc. were not decisions made by individuals but resulted from a process involving a number of partners and staff. The senior manager was an important part of that process. The plaintiff was involved in coaching and the annual performance reviews of subordinate staff.
[153] The partners testified, and the plaintiff admitted, that a great deal of the plaintiff’s work was self-initiated because of the plaintiff’s aggressive pursuit of new client engagements which qualified for CSM incentive compensation. The plaintiff said in his testimony, “I did not make it rain, I made it pour.”
[154] I reject the plaintiff’s evidence that he had no managerial or supervisory responsibilities. In my opinion, the character of the plaintiff’s employment was both supervisory and managerial. The whole point of the senior manager role was to manage and to supervise. This was not a meaningless title; rather, it was an accurate description of the plaintiff’s job and the expectations of him in the performance of that job.
[155] While it is true that, as senior manager, he continued to do research and draft memos etc., this was also true of partners. The plaintiff’s own evidence, which is consistent with the performance metrics and other documentation outlining the role of senior manager, was that his research and drafting activities as a senior manager were expected to be at a very high level of technical quality, experience and judgment.
[156] The plaintiff was well aware throughout his tenure as senior manager that “senior managers” did not qualify for overtime pay under Deloitte’s policies. The plaintiff was also aware, according to him, that his hours frequently exceeded the statutory maximums. While Deloitte’s policies cannot override employee rights under the ESA, the fact that, although he felt overworked, the plaintiff never complained about his exclusion from entitlement to overtime pay is some indication of how the plaintiff himself regarded his role as senior manager - that is, as supervisory and managerial in nature.
[157] Adopting the OLRB two-step approach, which requires analyzing whether any non-supervisory or non-managerial duties were more than irregular or exceptional, I find that the plaintiff did not regularly perform non-supervisory or non-managerial duties.
[158] This case is completely unlike the OLRB decisions cited to me by the plaintiff. This is not a case like that of the executive chef who was washing dishes as a result of job action by the busboys. It is of course true that the plaintiff answered the phone, drafted memos, conducted research and the like. Partners too performed similar tasks. These tasks might be characterized as non-supervisory or non-managerial in certain contexts. But, in the context of the plaintiff’s role as senior manager in the ITSG at Deloitte, I do not think these activities can be characterized as the performance of non-supervisory or non-managerial duties on a regular or ordinary course basis. They were part and parcel of his supervisory and managerial duties. I find that the plaintiff did not perform non-supervisory and non-managerial duties in the ordinary course of his employment.
[159] In substance, the true nature of the plaintiff’s employment was supervisory or managerial. The protections afforded by Part VIII of the ESA were not intended to apply and do not apply to positions like the plaintiff’s.
[160] Even if I had reached the opposite conclusion, the plaintiff has failed to adduce the necessary evidence to permit a calculation of his overtime entitlement. In the absence of such evidence, it is impossible to determine what the plaintiff’s entitlement, if any, might be.
Conclusion
[161] For these reasons, the plaintiff’s claim for overtime pay is dismissed.
4. Costs
[162] I encourage the parties to reach agreement on the proper disposition of costs. In the absence of an agreement, any party seeking costs may file brief written submissions (not to exceed three typed pages), accompanied by a bill of costs and other supporting material within two weeks of the release of these reasons. Any responding submissions (also not to exceed three typed pages) shall be filed within two weeks thereafter.
PENNY J.
Released: June 18, 2013
COURT FILE NO.: CV-09-373222
DATE: 20130618
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COSTA TSAKIRIS
Plaintiff
– and –
DELOITTE & TOUCHE LLP
Defendant
REASONS FOR JUDGMENT
PENNY J.
Released: June 18, 2013
[^1]: As noted, this did not mean the client paid. It was Deloitte which reimbursed these expenses.