ONTARIO
SUPERIOR COURT OF JUSTICE
(SMALL CLAIMS COURT)
Court File No. 500/13 (Kitchener)
B E T W E E N:
JEANETTE BOMHOF ) Mr. Gurlal S. Kler
) Counsel for the Plaintiff
Plaintiff )
-and- )
EUNOIA INCORPORATED and ) Mr. Brian R. Kelly
EUNOIA2 INCORPORATED ) Counsel for the Defendants
Defendants )
Heard: October 15, 2013
REASONS FOR JUDGMENT
- Judgment in this wrongful dismissal case was reserved. For the following reasons, judgment is granted for the plaintiff against Eunoia2 Incorporated, in the amount of $20,455 plus interest, and costs fixed at $1,995 all-inclusive. The claim as against Eunoia Incorporated is dismissed without costs.
Nature of the Dispute
The plaintiff’s employment was terminated without cause on February 25, 2011 after slightly more than 8 years working as a Clinical Trials Coordinator for Eunoia2 Incorporated and its predecessor Eunoia Incorporated. She was 64 years of age at the time of dismissal and her remuneration at the time was based on $37 per hour for 27 hours per week. She claims damages of $25,000 based on a notice period of 12 months.
The defence says that Ms. Bomhof failed to mitigate her damages and that in any event the appropriate notice period is 8 weeks’ working notice which was given. The length of the working notice period is itself disputed.
Issue 1: What was the Working Notice Period?
The facts relating to this issue may be briefly stated and are not in contention.
On January 3, 2011, the principal of Eunoia2, Dr. Egerdie, delivered to Ms. Bomhof a letter informing her that due to a market downturn, she was being dismissed effective February 11, 2011 (Exhibit 1, Tab 4). That would be a working notice period of roughly 5 weeks. On January 11, 2013, Ms. Bomhof delivered a letter to Dr. Egerdie pointing out that the proposed working notice period was less than the 8 weeks mandated in her case by s. 57 of the Employment Standards Act, 2000 (Exhibit 1, Tab 5).
Dr. Egerdie responded by handing her a revised termination letter on January 11, 2011, in which the termination date was changed from February 11 to February 25, but the date of the letter remained January 3. He acknowledged to Ms. Bomhof that he had been mistaken about the duration of her employment. January 3 to February 25 would be a working notice period of just under 8 weeks. January 11 to February 25 would be roughly 6.5 weeks.
The plaintiff cites Di Tomaso v. Crown Metal Packaging Canada LP (2011), 2011 ONCA 469, 282 O.A.C. 134 (C.A.), at para. 21, where MacPherson J.A. states for the court that a notice of termination must be “clear and unambiguous” and “must include the final termination date.” In that case, the termination date had been extended several times. The court concluded that an eventual letter which confirmed the actual termination date was the effective notice given.
In my view that principle applies here. Something as important to employees and employers as the effective date of termination should not be subject to unilateral change by the employer without affecting the effective date of the notice. Such a position would create unnecessary and inappropriate uncertainty in employment law, both at common law and under the Employment Standards Act, 2000, S.O. 2000, c. 41.
I find that in law, Eunoia2 withdrew the first notice letter and replaced it with the second letter which is therefore the effective notice. Since it was delivered on January 11, 2011, that is the effective date of notice in this case, with the termination date being February 25, 2011.
I find that the working notice period was 6.5 weeks.
Issue 2: The Reasonable Notice Period
Ms. Bomhof was 64 years of age at the time of dismissal. She had worked for the company for over 8 years as a Clinical Trials Coordinator. It was not a managerial position but it involved various nursing responsibilities and was in significant part a professional position.
The factors set out in Bardal v. Globe & Mail Ltd. (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.J.), are applicable. In particular I find that 64 is a difficult age at which to be dismissed. In addition I am satisfied that the availability of similar employment was unfavourable. Despite the defence position, I am unable to say that any specific positions as Clinical Trials Coordinator were available at the relevant time, and based on the efforts made by Ms. Bomhof to secure a replacement position and the lack of success those efforts produced, I am satisfied on a balance of probabilities that this factor tends to support a longer notice period in this case.
Ms. Bomhof claimed a reasonable notice period of 14 months in her statement of claim and reduced that to 12 months in submissions. The defence suggested that 8 weeks was appropriate. The plaintiff submitted two charts representing an attempt to support her submission based on 12 months but I found that both charts suffered from a lack of representative comparators.
I find that the appropriate reasonable notice period for this matter is 10 months.
That means the notice period is from January 11, 2011 to November 11, 2011. Allowing for the working notice given, the difference is approximately 8.5 months. Based on 27 hours per week at $37.24, times 8.5 months, times 4.3 weeks per month, the plaintiff’s damages prior to mitigation are assessed at $36,750.
Issue 3: Mitigation
Ms. Bomhof secured a part-time position starting on May 16, 2011, as a research nurse, making $26 to $27 per hour. However she felt that the standards of that employer were unsatisfactory and she quit in December 2011. Her earnings at that job for the period up to the end of the notice period on November 11, 2011 were $16,295 (see Exhibit 1, Tab 11).[^1]
Based on that income, the plaintiff’s damages prior to determination of the defence allegation that she failed to mitigate, are $36,750 less $16,295 which is $20,455. I now turn to what is effectively the main issue in this case, namely the defence contention that Ms. Bomhof failed to mitigate her damages.
As part of its submissions, the defence suggested that Ms. Bomhof could have started looking for another job before her dismissal by Eunoia2. It was pointed out that the company had experienced a downturn, to her knowledge, and that her hours had been reduced from full-time hours of 40 or more per week to only 27 hours.[^2] I reject that submission. There is no legal duty on an employee to start looking for other work prior to notice of termination. Any such duty would undermine the requirement that notice of termination be clear and unequivocal. Since notice of termination was given on January 11, 2011, that is when the duty to mitigate was triggered.
The plaintiff testified that she applied for approximately 75 positions. Her perception was that her age was a definite disadvantage although no prospective employer actually said that to her. Her approximate age could be deduced from the fact as stated on her résumé that she had been a member of the College of Nurses of Ontario since 1970.
She received just one job interview, which resulted in just one offer, which she accepted. That was the part-time job she started on May 16, 2011.
Ms. Bomhof kept a job search record which was suggested by her counsel (Exhibit 1, Tab 9). She prepared that record after the fact and not contemporaneously with her applications, having reconstructed its contents based on her email records (see Exhibit 1, Tab 10). She testified and I accept that it does not record all of her job search efforts. I accept as a fact that she applied for approximately 75 positions. The entries on the job search record are dated from January 4, 2011 to May 8, 2011, with the exception of two entries dated in August and September 2011.
Ms. Bomhof said that having applied for the 75 positions and obtained only a part-time job, she relied on the fact that many prospective employers say that they keep a résumé on file for six months. She said that her job search continued after May 16, 2011 because she had realized soon after starting that part-time job that her nursing standards were incompatible with those of that employer.
The defence points to the lack of documentary support for any significant job search efforts having been made by the plaintiff after May 16, 2011. I agree that her actual job applications from May 16 to November 11, 2011, appear to have been limited to only two.
The defence points to the plaintiff’s own evidence that she made a decision not to apply for work at any of the local hospitals, and submits that she ought to have done so and it was plainly unreasonable for her to have omitted that source of potential re-employment from her mitigation efforts. She could have applied to hospitals for a nursing position or a Clinical Trials Coordinator position, the defence contends.
Ms. Bomhof’s evidence is that she did not apply for a hospital nursing position because all of her acute care certifications had lapsed during the course of her employment as a Clinical Trials Coordinator with Dr. Egerdie’s company. She felt uncomfortable with respect to almost every aspect of such a position, because during her time away from acute care nursing new medications, equipment, procedures and practice standards had come into application with which she was unfamiliar. She had inquired about upgrading courses at two local colleges and was informed that such courses would require 600 (six hundred) hours of study and a cost of up to $2,000. I accept that evidence.
Dr. Egerdie testified that hospitals are always looking for nurses, for both acute care and chronic care positions, and that in addition hospitals do hire Clinical Trials Coordinators “not infrequently”. He testified that hospitals also do re-training for nurses who require it, which involves a period of 3 to 6 months. However Dr. Egerdie fairly conceded that he has never been privy to the hiring of a nurse for any hospital. While I accept that fact of his opinions on this subject, I view this evidence as highly generalized and hearsay evidence based on his understanding of how those hospital employees who hire nurses perform that function. I place little to no weight on that hearsay evidence: see Central Burner Service Inc. v. Texaco Canada Ltd. (1989), 36 O.A.C. 239 (Div. Ct.); Sathaseevan v. Suvara Travel Canada Inc., [1998] O.J. No. 1055 (Div. Ct.), at para. 4.
The question is whether in these circumstances, the plaintiff should be held to have failed to mitigate her damages as contended for by the defence. It is appropriate to review the law on this subject with reference to both the onus and the standard of proof of an alleged failure to mitigate.
Both counsel point me to Red Deer College v. Michaels, 1975 15 (SCC), [1976] 2 S.C.R. 324, which is generally considered the leading case on this subject and stands for the basic proposition that the onus to prove a failure to mitigate is on the defendant. At paragraph 11 of the reasons of Chief Justice Laskin, I note the following statements:
... If it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial Judge’s assessment of the plaintiff’s evidence on avoidable consequences. [emphasis added] This is the way I read what is said on the matter in such leading text books on the subject as... Williston on Contracts (1968)... at pp. 30 and 312:
It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract.
For the defence, Mr. Kelly submits that the case at bar is unique because there is evidence, including that of Dr. Egerdie, that hospital positions were available and Ms. Bomhof’s own evidence is that she applied for no such positions. Therefore, acknowledging that as a general proposition it is not easy for a defendant to prove a plaintiff’s failure to mitigate - as the above-emphasized clause from Red Deer College v. Michaels implies, in my opinion - Mr. Kelly submits that the evidence satisfies the onus in this particular case.
For the plaintiff, Mr. Kler points me to Somir v. Canac Kitchens (2006), 2006 42369 (ON SC), 56 C.C.E.L. (3d) 234 (Ont. S.C.J.), at para. 58. In that passage, Wilton-Siegel J. refers to Furuheim v. Bechtel Canada Ltd. (1990), 30 C.C.E.L. 146 (Ont. C.A.), at para. 3, where the court states:
To overcome the onus of establishing no mitigation the defendant must show that the plaintiff’s conduct was unreasonable, not in one respect, but in all respects.
- That proposition was described as follows in Wood v. Canadian Marconi Co. (1995), 9 C.C.E.L. (2d) 174 (Ont. Div. Ct.), at para. 5-6:
[5] The onus of proving that an employee has failed to mitigate his or her damages is on the employer. In order to overcome this onus, the employer must show that the employee’s conduct was unreasonable in all respects.
Furuheim v. Bechtel Canada Ltd. (1990), 30 C.C.E.L. 146 (Ont. C.A.)
[6] In determining whether a plaintiff has mitigate his or her damages, the reasonableness of the plaintiff’s decision is not to be judged too rigorously for it is the defendant’s breach that gives rise to the plaintiff’s duty to mitigate, and it lies ill in the mouth of the contract-breaker to criticize the making of a difficult decision necessitated by his own breach.
Kamlee Construction Ltd. v. Town of Oakville (1960), 1960 431 (SCC), 26 D.L.R. (2d) 166 (S.C.C.)
Another aspect of the onus on the defendant who pleads a failure to mitigate is the question of causation: is the defence only required to show that different or better efforts could have secured a better result for the plaintiff’s re-employment income? Or is the defence required to prove that the proposed different or better efforts probably would have yielded better re-employment income? This distinction was addressed only briefly during submissions.
The necessity for the defence to prove that an alleged failure to mitigate in fact caused the plaintiff to earn reduced income during the notice period is supported by several trial-level authorities: Rowe v. General Electric Canada (1994), 1994 7389 (ON SC), 8 C.C.E.L. (2d) 95 (Ont. Gen. Div.), at para. 14; Webb v. Eaton Yale Ltd., [2003] O.J. No. 5013 (S.C.J.), at para. 63; Munoz v. Canac Kitchens, [2008] O.J. No. 4774 (S.C.J.), at para. 65.
More generally, the question of proof of causation of damages was addressed in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, where it was held that the usual requirement for proof of damages is the “but for” test and not lesser tests which had emerged from the personal injury context such as the “material contribution” test. In principle there appears to be no good reason not to apply that approach when considering whether a defendant has discharged its onus to prove a failure by a plaintiff to mitigate her damages. I am unaware of any appellate authorities which consider this issue in the wrongful dismissal context.
Mr. Kelly submits that the law of mitigation should not be placed beyond the reach of employers. Although he did not put it this way, it could be argued that the standard of proof of a failure to mitigate may in the past sometimes have been, but should not be effectively raised beyond the normal civil standard of proof on a balance of probabilities, based on the recent decision in H.(F.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41. There it was held that the civil standard of proof on a balance of probabilities is the only standard of proof for civil cases, even claims involving allegations of criminal or morally-blameworthy misconduct.
More recently, the Supreme Court of Canada considered the question of a heavier civil standard of proof than that on a balance of probabilities. In Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, Cromwell J. (for the majority) said this at para. 94:
... it is important to differentiate between the standard of proof and how readily that standard may be attained in a given case. It is now settled law that there is only one civil standard of proof at common law and that standard is proof on the balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40.
It could be argued that a lower standard of proof should apply to a defence of failure to mitigate than the usual requirement to proof causation. In the negligence context, it has been held that the defence of contributory negligence need only be proved on the basis of relative moral blameworthiness rather than relative causation: Snushall v. Fulsang (2005), 2005 34561 (ON CA), 78 O.R. (3d) 142 (C.A.), leave to appeal denied [2005] S.C.C.A. No. 519. But that ruling applies specifically to the defence of contributory negligence, with its statutory backdrop.
Taking all of these authorities into account, it appears to me that the comments at para. 11 to 13 of Chief Justice Laskin’s reasons in Red Deer College v. Michaels, supra, cannot be taken for the proposition that the defendant’s onus is merely to show that different or other efforts on the plaintiff’s part could or might have secured better income during the notice period. Rather the onus is to prove on a balance of probabilities that but for the plaintiff’s failure to make different or better efforts, she would have secured better income during the notice period.
In other words, as Ferguson J. put it in Rowe v. General Electric Canada Inc., supra, at para. 14:
... I think it is clear that before I can make a finding that the plaintiff’s damages should be reduced on the ground that he failed to mitigate I must first find on the evidence that any failure to mitigate actually caused part of the loss. Proving a failure to take reasonable steps to mitigate is not sufficient - there must be direct evidence, or evidence sufficient to support an inference, that the omission of the plaintiff was causative. The evidence must prove that the plaintiff failed to take reasonable steps to mitigate the loss and that had such steps been taken they would have reduced the loss. The breach of the plaintiff’s duty to mitigate will only be relevant if the breach is proved to be causative.
That specific aspect of Rowe v. General Electric Canada Inc., supra, was followed by Heeney J. in Webb v. Eaton Yale Ltd., supra, and by Strathy J. (as he then was) in Munoz v. Canac Kitchens, supra.
I note the actual result on the issue of mitigation in Rowe v. General Electric Canada Inc., supra, is stated as follows at para. 15 of the reasons of Ferguson J.:
I am satisfied that the plaintiff did not take all reasonable steps to seek alternate employment. He should have taken advantage of the counselling and other services offered free by his employer and should have actively made enquiries instead of simply responding to advertisements. However, the evidence does not establish that had he done so the loss would have been less. The efforts he did make show that he would have difficulty being hired even for positions for which he was well qualified.
In the case at bar, my conclusion is that the defence has failed to establish on a balance of probabilities that the plaintiff’s damages would have been reduced in whole or in part by her alleged failure to mitigate. The evidence falls short of proof on a balance of probabilities of the causation element of the alleged failure to mitigate. There is no evidence that any specific position was available and I am not satisfied that had Ms. Bomhof applied, for example, to any potential hospital positions that she probably would have attained such a position and secured better income during the notice period.
Returning to the question of whether the defendant has established a failure by Ms. Bomhof to take all reasonable steps to secure alternate employment, my conclusion is that the defence has failed to discharge this part of its onus also. I accept that Ms. Bomhof would have needed upgrading courses to work as a nurse again and that such courses would have involved a significant period of study. The 600 hours indicated by her evidence, which I accept, would represent approximately 22 weeks (5 months) if measured against her 27-hour workweek at Eunoia2. In addition there would be tuition and other costs including opportunity costs. With or without consideration of her age and any effect her age may have had on the prospects for re-employment, and the obvious reality that retirement must be nearer in future for a 64 year-old than for younger people, I am unable to accept the defence contention that it was unreasonable for her to have failed to apply for hospital positions.
I find that the defence of failure to mitigate fails.
Conclusion
- Judgment is granted against Eunoia2 Incorporated for $20,455 plus interest. Since it was the employer at the time of dismissal, there is no basis for judgment against its predecessor and the claim is dismissed as against Eunoia Incorporated, without costs.
Costs
This action was commenced in the Superior Court of Justice under the Simplified Procedure, at Toronto. It was transferred to Kitchener by consent order of Justice Hambly dated June 16, 2011, with costs of $500 to the defendants in the cause. Then it was the subject of a motion by the plaintiff for summary judgment which motion was dismissed by Justice Broad: [2012] O.J. No. 2455 (S.C.J.). Those motion costs were reserved to the trial judge: [2012] O.J. No. 3216 (S.C.J.) (counsel advised that the formal order of Justice Broad has yet to be entered). Then the parties consented in January 2013 to a transfer of the action to the Small Claims Court (although at that time the claim was for damages of $78,050).[^3]
This court has no jurisdiction over costs in the Superior Court of Justice. Even a judge of that court who makes an order transferring an action to this court has no jurisdiction to reserve the costs to date in that court to the trial judge in this court: Pietrangelo v. Lundrigan (1999), 1999 19908 (ON SCDC), 44 O.R. (3d) 71 (Div. Ct.). The cases suggest that the appropriate time to address costs to date when an action is transferred from the Superior Court of Justice to the Small Claims Court, is at the motion in the Superior Court of Justice when such a transfer is requested: see Ali v. Schrauwen (2011), 2011 ONSC 2158, 18 C.P.C. (7th) 425 (Ont. Master); Lamarche v. ING Ins. Co. of Canada, [2012] I.L.R. 1-5317 (Ont. Master).
In this case there was no such motion. Instead the parties made erroneous use of Courts of Justice Act s. 23(2) to effect a consent transfer of the action to this court despite the fact that the claim was not at that time within the jurisdiction of this court. It appears the parties did not turn their minds at that juncture to the question of the costs incurred up to that point in the Superior Court of Justice, nor to the question of the costs which had been reserved to the trial judge by order of Justice Broad.
I find that I have no jurisdiction over the costs incurred by the parties in the Superior Court of Justice, including the motion costs which were reserved to the trial judge. I note that the prospect of potential transfer to this court does not appear to have been made known to Justice Broad and presumably the plaintiff’s decision to pursue such a transfer was not made until after that motion and costs decision by His Honour. Were it not for Pietrangelo v. Lundrigan, supra, there might have been some argument that I could determine those motion costs, but even then the fact is that the costs ruling of Justice Broad does not purport to authorize a deputy judge of this court to do so.
I find that if either of the parties wishes to claim costs incurred in the Superior Court of Justice, their only potential avenue would be to raise that issue before a judge of that court. It would be for that court to determine if perhaps any such request is too late, and in any event whether a separate costs award for the costs incurred in that court is indicated. The basic outcome is that the plaintiff succeeded at trial in this court, but failed at the summary judgment motion in that court. The action could have been commenced in this court at the outset but the plaintiff elected, as was her right, to commence the action promptly following dismissal and therefore quite early in the reasonable notice period - making it difficult to assess the mitigation picture at that time and its effect on her potential damages award.
As for the costs incurred in this court after the transfer of the action in January 2013, my decision is as follows. The plaintiff was successful and is entitled to costs. I allow disbursements of $300 consisting of $100 to set down for trial and $200 for other disbursements including counsel’s travel from Toronto. For a representation fee for intermediate counsel (called 2007), for a full-day trial including preparation with a significant legal issue involved, I allow $1,500 plus HST.
Total costs of $1,995 all-inclusive are payable to the plaintiff by Eunoia2 Incorporated.
If either side takes the position that this costs disposition should be affected by any offers to settle which might trigger rule 14.07 cost consequences, brief written submissions may be made on the following timetable: initiating submissions to be filed no later than October 30, 2013, responding submissions by November 8, 2013.
I thank both counsel for the helpful presentations.
October 20, 2013
Deputy Judge J. Sebastian Winny
[^1]: I have deducted the last entry for $500 as that was earned after the notice period.
[^2]: The evidence does not reveal when those reduced hours were effected and there was no argument that the reduction of hours itself amounted to constructive dismissal.
[^3]: It was amended to $25,000 at the start of trial, which I have previously held to be a permissible remedy to that erroneous application of Courts of Justice Act s. 23(2): see Lock v. Waterloo (Regional Municipality), [2011] O.J. No. 4898 (Sm. Cl. Ct.).