SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13-59005
DATE: 2014/04/03

RE: JOHN WELLMAN, Plaintiff

AND

THE HERJAVEC GROUP INC., Defendant

BEFORE: Aitken J.

COUNSEL: Sean P. Bawden, Counsel for the Plaintiff

Christina J. Wallis, Counsel for the Defendant

HEARD: March 27, 2014

ENDORSEMENT

Nature of the Proceedings

[1] In this wrongful dismissal action, the Plaintiff employee brings a motion for summary judgment under r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. More specifically, the Plaintiff seeks a ruling that, based on the application of the factors in Bardal v. Globe and Mail (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.), a reasonable notice period, in the circumstances of this case, would be five months. The Defendant employer takes the position that a reasonable notice period under common law principles would be two months.

Background Facts

[2] On June 8, 2012, the Plaintiff and the Defendant signed an employment agreement pursuant to which the Defendant hired the Plaintiff as a Pre Sales/Post Sales/Data Services Engineer within the Data Centre Services Team. The Plaintiff’s primary responsibility was “to support the sales organization and its customers, as well as work with and mentor the Internal team”. The Plaintiff’s base salary was $95,000. There were additional employee benefits, including a comprehensive benefit plan and three weeks of vacation.

[3] The Plaintiff worked in this capacity for the Defendant from July 16, 2012 to July 8, 2013, when the Plaintiff’s employment was terminated without cause. During this period of employment, the Plaintiff worked diligently for the Defendant and was never reprimanded, punished, nor advised of any concerns with respect to his work.

[4] At the time of termination, the Defendant provided the Plaintiff with two weeks’ pay in lieu of notice, pursuant to a termination clause included in the original employment contract. Both parties agree that this termination clause cannot be relied upon by the Defendant as establishing the required notice period. Both parties agree that a reasonable notice period must be determined through the application of common law principles.

[5] It took the Plaintiff until December 4, 2013 to find alternate employment. That employment consisted of a contract position that brought him approximately 70% of the salary that he had received while working for the Defendant. The new employment provided no benefits.

[6] Between July 8 and December 4, 2013, the Plaintiff looked for alternate employment. He updated and posted his resume on Workoplis, Monster.ca, LinkedIn, and Indeed. He registered with ITO2.0 Employment Services, who provided him with a case worker and training, including behavioural interviewing and professional resume writing. As well, the Plaintiff contacted every contact that he had in the information technology (“IT”) business in Ottawa to see if there were any jobs available of which they were aware. Between July 8 and December 4, 2013, the Plaintiff earned $480 in gross employment income. He also received some employment insurance, which will not factor into any calculation of damages.

Motion for Summary Judgment

[7] The parties agree that the issue to be resolved regarding a reasonable notice period can properly be considered on a motion for summary judgment under r. 20.04(2)(a). The evidence is adequately set out in an affidavit and in various documentary exhibits. It allows the court to make the necessary findings of fact. On the summary judgment motion, counsel have the opportunity to fully argue the legal issues. All that remains is to apply the law to the facts. In this case, the motion for summary judgment is a more proportionate, more expeditious, and less expensive means than a trial to achieve a just result. (See Hryniak v. Mauldin, 2014 SCC 7.)

Issue

[8] The only issue to be decided in this case is that of a reasonable notice period.

Bardal Factors

Age of the employee

[9] At the time of his dismissal, the Plaintiff was 40 years old, married, and the father of two children. His mid-range age is a neutral factor. He was not at the beginning of his career, where an employment set-back can be recovered from more easily. At the same time, he was not nearing the end of his career when a dismissal from employment can turn into a forced retirement. He was young enough, and had enough of his working life ahead of him, to still be of interest to employers. At the same time, it would be reasonable to assume that, by his age, he could have family responsibilities that might make him less mobile than a young person starting out in a career, and this is of some relevance when mitigation is considered.

Length of service

[10] The Plaintiff was employed by the Defendant for 51 weeks, just one week shy of a year. Thus, the Plaintiff was a “short service employee”. Although this factor tends to reduce the appropriate period of notice, Goudge J.A. in Love v. Acuity Investment Management Inc., 2011 ONCA 130, 89 C.C.E.L. (3d) 157, at para. 19, warned of the dangers of placing too much emphasis on length of service, as it is just one factor to be taken into account.

While short service is undoubtedly a factor tending to reduce the appropriate length of notice, reference to case law in a search for length of service comparables must be done with great care. The risk is that, while lengths of service can readily be compared with mathematical precision, that is not so easily done with other relevant factors that go into the determination of notice in each case. Dissimilar cases may be treated as requiring similar notice periods just because the lengths of the service are similar. The risk is that length of service will take on a disproportionate weight.

Experience, training and qualifications of the employee

[11] The Plaintiff has a diploma in Industrial Engineering Technology and a second diploma in Computer Systems Technology, both from Algonquin College. In addition, he has three separate certifications in the technology field. He has a long list of competencies in terms of the hardware and software systems for which he can provide technical support. He has a Public Works and Government Services Canada top secret (Oracle) security clearance rating and an internal secret clearance rating within the Defendant’s organization.

[12] The Plaintiff does not have a university education.

[13] Between 1999 and 2012, the Plaintiff worked for four employers operating in the IT field. His employment with those employers ranged from one year (with the Defendant) to eight years with his first employer. All involved the provision of enterprise support to large customers.

Character of the employment

[14] The nature of the Plaintiff’s employment with the Defendant in regard to “Pre-sales” was set out in a March 7, 2013 email from Jason Winter to the Plaintiff. It described the Plaintiff’s responsibilities as follows:

• Technical Account Management (TAM) for key accounts – such as Rogers, TD and other to be determined – the team will be responsible for working with this key accounts regularly and having an open dialogue with them – in some cases (such as Rogers) the team may be on site for long periods of time

• Pre Sales – the team will be the single interface to the entire sales organization for all pre sales issues – the sales team will NOT go to anyone else in operations – they will go to pre sales and you guys (if required) will go to the operational technical services team

• SOW’s – the team will be responsible for doing all SOW’s (again – you may leverage the tech team but it is your teams responsibility to get them done)

• Tenders, RFP’s – all under your team – but they need to be driven by the sales rep and sales management to ensure they are qualified

• Product & Services Management – as we launch new products (i.e. Fireye, SPLUNK) it is your teams responsibility to get up to speed on them, learn them and be able to demo them

• Interface with Vendor SE – the sales reps will come to our team for all pre sales – if you need to engage the vendor SE then you will – not the sales organization (again a simple and easy way for sales to have a single point of contact so that you can further qualify and move along the process)

• Tracking of SOW’s, tenders, RFP’s, meetings for your team – on a weekly basis

• Executive Level Presentations – your team will be brought in to do high level executive presentations and meetings – which means they need to have an executive level PPT ready to go and ready to present – as well as Product Roadmaps, technology presentations (i.e. our SIEM offering and so on)

• Internal Sales Training and Material – your team will need to work with our marketing folks to do internal sales training, product sheets, handouts on our managed services and so on – we will no longer have vendors come in and train the sales organization – they will train your team, you will boil it down to key points (with our sales management) and you will train the sales teams

[15] The following aspects of this job description militate in favour of a longer notice period. The Plaintiff was to manage key accounts with major customers such as Rogers and TD. The team, in which the Plaintiff was to take a leadership role, was to be the single interface between the entire sales organization of the Defendant and the operational side of the business. The Plaintiff’s team was to be responsible for all statements of work, tenders, and RFPs. When new products were launched, it was the responsibility of the Plaintiff’s team to master them and take the lead in teaching the sales team, and others in the organization, about them.

[16] When the Plaintiff was hired, the intention was that he would be trained on “the inner workings of government procurement” and would be brought up to speed on the major clients that the Defendant was currently working with. The Plaintiff was supposed to report to the Director of Engineering – Western Canada. Ultimately, he reported directly to the VP of engineering.

[17] Despite that fact that, at the time of his hiring, it was anticipated that the Plaintiff would be the leader of a team, the team never materialized. At the time of his dismissal, the Plaintiff was not supervising anyone.

[18] I would peg the Plaintiff’s level within the organization as being middle to senior management, though not within the high echelons of power and authority. In addition to his job description, his salary of $95,000, his benefits, and the fact that he was to be reimbursed for such activities as business promotion, “including golf, lunches and dinners with clients or potential clients”, even though he was in a technical, not sales, position, suggest that he was in management.

Availability of similar employment and mitigation efforts

[19] After his dismissal, the Plaintiff actively looked for employment in the IT industry in the National Capital Region. After five months of searching, he was only able to find a contract position bringing him 70% of his previous income and no benefits. The length of time it took the Plaintiff to secure new work, and the type of work he eventually found, provide some evidence as to the availability of similar employment in the National Capital Region during 2013.

[20] Although the Defendant questions whether the efforts the Plaintiff took to mitigate his losses were reasonable, the Defendant has not pointed to any steps the Plaintiff could have taken between July and December 2013, in addition to what he did, that would have resulted in his getting suitable alternate employment more quickly, nor has the Defendant pointed to any specific employment opportunities in the National Capital Region that would have been available for the Plaintiff and that would have amounted to similar employment to what he had had with the Defendant.

[21] What the Defendant does point to are articles and statistical data generated by the Information and Communications Technology Council (“ICTC”), a “not-for-profit sector council dedicated to creating a diverse, prepared and highly educated Canadian ICT [information and communication technology] industry and workforce”. In a presentation to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities in April, 2012, the ICTC stated that the jobless rate in Canada for ICT workers was 3%, significantly below Canada’s average unemployment rate at the time of 7.5%. It went on to state that the number of jobs in this sector was increasing so rapidly that there were not enough qualified workers available to fill the positions. It anticipated that this trend would continue into the future.

[22] Although various charts and graphs were provided from ICTC regarding employment opportunities generally in this sector across Canada, no information was provided specifically for the National Capital Region or Eastern Ontario. It was reasonable for the Plaintiff to spend five months seeking replacement employment in the Ottawa area, where he and his family were established, before looking farther afield. Therefore, information relating to the state of the sector in the National Capital Region, instead of all of Canada, would have been more pertinent.

[23] The data from ICTC also included the following numbers, again applicable to Canada as a whole:

• The jobless rate in the ICT sector increased from 2.6% in 2013 Q1 to 3.2% in 2013 Q2, mainly because many ICT workers joined the labour force (an increase of 9,000) and started looking for work.

• Between 2013 Q1 and 2013 Q2, a significant number of jobs were lost among software/graphic user interface developers (down 11,200), informatics/business systems analysts (down 11,000), and web/network support technicians/administrators (down 8,600).

• Total employment in ICT occupations across all sectors in July 2013 was down 14,000 from the month before.

• The jobless rate in ICT occupations in July 2013 was 3.4%.

• Total employment in ICT occupations across all sectors in August 2013 was down 8,000 from the month before.

• The jobless rate in ICT occupations in August 2013 remained at 3.4%.

[24] The data tendered in evidence by the Defendant to support its argument that similar employment would have been available for the Plaintiff in July, August, and September 2013, had he searched more diligently, does not support this inference. In the exact months when the Plaintiff was looking for such employment, the availability of jobs in this sector was shrinking, not increasing, despite an overall upward and positive trend projected forward to 2016 in the ICTC reports.

Other Factors

Nature of the industry

[25] The Defendant argued that expectations within the IT sector are such that employees are used to changing jobs on a frequent basis. Companies come and go, the needs of companies change rapidly, and employees have to expect a career with many moves. Although this may be the case, the uncontroverted evidence of the Plaintiff was that he anticipated being with the Defendant for a minimum of three years. In the context of his career to date, this was not an unreasonable expectation. Although the Plaintiff had been with his previous employer for only two years and four months prior to moving to the Defendant, he had spent over four and a half years with an earlier employer and over eight years with his first employer. The nature of the IT industry may reduce the length of a reasonable notice period by a certain amount but, in the context of this case, not by very much.

Disposition

[26] In arriving at a decision, I have taken into account the cases referred to me by both parties in their facta and, in particular, the charts both included summarizing recent wrongful dismissal cases from the IT sector. No two cases are the same, and each involves a balancing of factors. Taking into account all of the factors discussed above, I conclude that a reasonable notice period, in the context of this case, is four months. This would be in the same range as that arrived at in the cases provided to me by both counsel.

[27] The Plaintiff’s motion for summary judgment is granted. The Plaintiff is entitled to damages from the Defendant for wrongful dismissal on the basis of a reasonable notice period of four months. I am confident that, with the notice period established, counsel will be able to calculate the damages payable without further assistance from the court. Counsel also advised that they have an agreement in regard to costs. If, for any reason, counsel should need further directions from the court, a conference call can be arranged through the trial coordinator.

Aitken J.

Date: April 3, 2014

COURT FILE NO.: 13-59005
DATE: 2014/04/03

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: JOHN WELLMAN, Plaintiff,

AND

THE HERJAVEC GROUP INC., Defendant

BEFORE: Aitken J.

COUNSEL: Sean P. Bawden, Counsel for the Plaintiff

Christina J. Wallis, Counsel for the Defendant

ENDORSEMENT

Aitken J.

Released: April 3, 2014