ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-49724

DATE: 20140624

B E T W E E N:

CLIFFORD DOUGLAS BEATTY
Plaintiff

Graeme B. Fraser, for the Plaintiff
(moving party)

• and -

BEST THERATRONICS LTD.
Defendant

Siobhan M. O’Brien, for the Defendant
(responding party)

ARGUED: May 16, 2014

HACKLAND J.

REASONS FOR DECISION

Introduction:

[1] This is a motion for summary judgment under Rule 20 of the Rules of Civil Procedure brought by the plaintiff in this wrongful dismissal action. On August 18, 2010 the plaintiff was summarily terminated from his employment by the defendant without cause. For the reasons discussed below, I am of the opinion that two of the issues raised, being the period of reasonable notice and the alleged failure to mitigate, do not present a genuine issue requiring a trial and are therefore appropriate for disposition by way of summary judgment. However, the issues of entitlement to aggravated or punitive damages and to certain special damages, do require viva voce evidence and I will deal with these subsequently by way of a summary trial of these issues as contemplated by Rule 20.05 (2).

[2] I think this approach is consistent with the directions of the Supreme Court of Canada in the recent case of Hryniak v. Mauldin 2014 SCC 7. JI adopt the useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. V. Egg Farmers of Ontario 2014 ONSC 1200 where Corbett J. stated at paras. 33-34:

33. As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:

(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(3) If the court cannot grant judgment on the motion, the court should:

(a) Decide those issues that can be decided in accordance with the principles described in (2), above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

34. The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a “full appreciation” of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court’s appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

Facts and Analysis

[3] The affidavits filed by the parties establish the following uncontested facts:

(a) The plaintiff was employed by the defendant and predecessor firms for an uninterrupted period of 16 years. He was 58 years of age at the time of the termination of his employment and is 61 as of this date.

(b) On termination, or up until shortly prior to that time, the plaintiff’s job title was “Radiation Safety Officer” and he earned a salary of $82,825 annually and was entitled to participate in the employers RRSP program (a contribution matching program) and certain other company benefits.

(c) The plaintiff has a grade 12 diploma, but no post-secondary formal education. He spent 23 years in the Canadian Forces. The plaintiff commenced employment with a predecessor to MDS Inc. (“MDS Nordion”) as a Radiation Safety Officer on or about July 4, 1994. On April 30, 2008, when the defendant acquired certain assets of MDS Nordion, the plaintiff was offered and accepted employment with the defendant as the company’s Radiation Safety Officer commencing May 1, 2008. As noted, his employment was terminated by the defendant, on a not for cause basis, on August 18, 2010. Accordingly the plaintiff was employed with the defendant for a period of just over 16 years.

(d) Upon termination, the defendant provided the plaintiff with 12 week’s salary and benefit continuation (which appears to be the Canada Labour Code statutory minimum of 2 week’s pay in lieu of notice and 10 week’s severance pay).

(e) The plaintiff remained unemployed for a period of approximately 10 months. On May 20, 20111 he signed a contract with Bruce Power with a start date of June 20, 2011 at a pay rate of $60 per hour. This was a 6 month contract, renewed once and which ended June 13, 2012.

[4] In my view, there are no contested matters of significance in this case that would prevent the court from establishing the reasonable notice period, subject to the mitigation argument discussed below. I agree with Perell J.’s observation in Adjemian v. Brook Crompton North America, [2008] O.J. No. 2238 (Ont. S.C.J.) that summary judgment may be an appropriate and optimal way to proceed in cases involving the determination of reasonable notice periods. To the same effect are: Camaganacan v. St. Joseph’s Printing Ltd., [2010] O.J. No. 3953 (Ont. S.C.J.) and Di Tomaso v. Crown Metal Packaging Canada LP, [2010] O.J. No. 5761 (Ont. S.C.J.). In my view, these cases are consistent with the Supreme Court’s ruling in Hryniak.

[5] The defendant is a federally regulated company engaged in the manufacture of nuclear medical equipment. It is licensed pursuant to the federal Nuclear Safety and Control Act, S.C. 1997, c. 9 as amended. I accept the plaintiff’s argument that his duties were highly specialized. His job functions are described in paragraph 12 of the defendant’s factum:

12. As Radiation Safety Officer, the Plaintiff was responsible for the development and maintenance of a radiation safety program in compliance with all applicable regulations. The Plaintiff was responsible for ensuring that all actions taken were safe, in accordance with manufacturers recommendations and that records were up to date and routine inspections were conducted. He was further responsible for preparing and conducting irradiator training courses. He was responsible for public relations work on site, including tours of the facility. The Plaintiff was responsible for developing and coordinating with local emergency authorities an emergency action plan and ensuring that all employees and any person operating the irradiator, including trainees, were properly trained. Prior to his leave of absence he was the site contact with regulatory authorities, namely the Canadian Nuclear Safety Commission (“CNSC”).

In addition to the plaintiff’s level of specialization, he had only a grade 12 education and, as noted, was 58 years of age. These factors, I find, made the task of finding re-employment in a comparable position, very difficult and I accept the plaintiff’s submission to this effect.

[6] What then is a reasonable period of notice for a 58 year old employee without a university degree, with 16 years of service, in a senior and specialized technical position, earning a salary of $82,825 annually plus benefits? I note as well that the dismissal here was truly summary in the sense of immediate and unexpected and no assistance was extended by the employer such as out-placement counselling or payment of severance beyond the statutory minimum.

[7] The plaintiff’s submission is that he is entitled to 16 months’ notice, being a fairly standard one month per year of employment calculation based on a consideration and balancing of all of the recognized factors set out in Bardal v. Globe and Mail (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140. The plaintiff’s counsel also argues that this period of notice is substantiated by many cases summarized in the Westlaw Database for the criteria entered of technical and skilled employees, working 11-20 years, age 50-59. The plaintiff has provided a number of comparable cases dealing with long service employees in senior technical positions, see Pillo v. Lowe Graphics Ltd., [1998] CarswellOnt 2915 (OCJGD); Sears v. Toronto General Hospital, [2001] O.J. No. 2811 (OSCJ); Hogg v. Norac Systems International Inc., [2008] SKQB 230 (SCQB) ; and Williamson v. Ritz Lutheran Villa, [2010] ONSC 1867 (OSCJ).

[8] The defendant’s position is that the payment of 12 week’s salary was sufficient in the circumstances. I was unable to discern any real rationale for this remarkable position. Two Nova Scotia trial decisions were cited to the court.

[9] In Bragg v. The London Life Insurance Company 1981 NSTD the court dealt with a dismissal, allegedly for cause. The employee, age 55, worked for the defendant for a period of 25 years as an insurance salesman earning between $14,000-$17,000 annually in his last four years of employment. He was dismissed, allegedly for cause on two weeks’ notice, for failing to meet sales targets. The court held that the plaintiff’s shortcomings did not amount to cause for dismissal and fixed his common law notice period at five months. This 33 year old case did not mention the Bardal factors utilized in Ontario and, as noted, the plaintiff was a salesman of modest income. This case does not assist the defendant.

[10] In Gribbon v. Revolving Door Training Centre Inc. 2000 Carswell NS 62, another dated Nova Scotia trial decision, the plaintiff, a carpenter and instructor in an institution for persons with physical disabilities, was determined to have been terminated for cause for inappropriately physically disciplining a resident. His period of employment was 13 years and he earned $604 bi-weekly. The court commented, without explanation, “absent justification of the dismissal the plaintiff would have been entitled to 3 months’ notice less mitigation…” Again, this case would appear to be irrelevant to the case at bar.

[11] Subsequent to the argument of this motion a decision involving the same defendant employer was handed down and at my request written submissions were sought and received from counsel. The case is Margus Vist v. Best Theratronics Ltd., 2014 ONSC 2867. In Vist the plaintiff was terminated without cause and the issue before the court was the proper notice period. The plaintiff was a Senior Radiation Physicist and subsequently was asked to assume the position of General Manager of the company. His salary as General Manager was $115,000 annually. In his position as General Manager, the plaintiff oversaw a team of 8 managers and approximately 150 employees. He reported directly to the President of the company. The plaintiff performed the duties of General Manager for approximately 1 year when, in May of 2009 he wrote to the President indicating that he wished to leave his position as General Manager and return to an engineering role. For unexplained reasons, he was them summarily dismissed 1 month later. He was given 2 weeks’ pay in lieu of notice and 3 weeks’ severance pay (i.e. the Canada Labour Code statutory minimum).

[12] In Vist Blishen J. awarded the plaintiff damages based on a 6 month reasonable notice requirement. A contested issue was his tenure of employment for notice purposes. The evidence established that he had approximately 16 years’ service with the company and its predecessor firms, with a 3 ½ year interruption in employment. The service interruption occurred some 2 ½ years before the period of continuous service leading to his termination on June 17, 2009. The court found as a fact that, notwithstanding the interruption in employment, the plaintiff “should be given some credit for his past services. He should be treated as a long term employee having given 16 years of service to the defendant and its predecessors”. Blishen J. observed that although the plaintiff was a long term employee, she did not view his length of service as cumulative and gave it “some weight”. I would view the Vist decision as distinguishable from the present case on the basis that in the present case the period of service was continuous. In any event, if the Vist decision is authority for the proposition that 6 months’ notice is adequate for a 54 year old senior executive of 16 years’ service, then I respectfully decline to follow it.

[13] The Court in Vist and the defendant in the present case rely on the decision of the Court of Appeal in Love v. Acuity Investment Management Inc., 2011 ONCA 130. In Love the Court warned against a mathematical comparison of length of service without adequate attention to the other relevant factors recognized in Bardal. In Love the trial judge awarded a senior executive with two and a half years’ service, 5 months’ notice based largely on the short period of employment. The Court of Appeal substituted a nine month notice period emphasizing the senior nature and significant compensation associated with the plaintiff’s position as well as the difficulty in finding similar employment. The Love decision does not support the proposition that a lengthy period of employment should be ignored.

[14] In summary, I accept the plaintiff’s submission and find on a balancing of the well understood Bardal principles that the period of reasonable notice is 16 months in the circumstances of this case.

Mitigation

[15] For the following reasons I reject the defendant’s argument that the plaintiff failed to reasonably mitigate his losses by seeking alternative employment. The burden of proving failure to mitigate is on an employer who alleges such. In Di Tomaso v. Crown Metal Packaging Canada LP, Beth Allen J. stated at paragraphs 36 and 37:

36. The burden of demonstrating the employee has not met that duty rests with the former employer. This court has addressed the nature of that duty:

The onus rests on the defendant to show either that the plaintiff “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”… the defendant must establish that the plaintiff’s conduct in seeking to find alternative employment was unreasonable in all aspects.

37. The Supreme Court of Canada spoke to the weightiness of the defendant’s onus:

The burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame.

[16] The defendant’s Human Resources Manager, Ms. Sharma, who deposed to the principal affidavit filed on behalf of the employer, does not allege any failure to mitigate on the plaintiff’s part. In fact, there is no opinion evidence at all to that effect in the evidentiary record. The defendant did file an affidavit of an articling student simply stating that he examined archival copies of the Ottawa Citizen newspaper for the period August 18, 2010 – August 17, 2011 and located advertisements for the positions listed in Schedule A to his affidavit. Schedule A is a list of 16 jobs with copies of the supporting advertisements. The “positions” on the schedule serve to illustrate that the jobs are completely inappropriate if they are intended to represent employment opportunities that the plaintiff should have been expected to pursue (eg. warehouse supervisor; warehouse personnel, order picker, general labourer, warehouse help, customer service rep, shipper receiver, etc.). The law is well settled that the duty of the dismissed employee is to make reasonable efforts to seek employment “suited to his employment experience and abilities”, see Di Tomaso at para. 35.

[17] Defendant’s counsel cross-examined the plaintiff about his re-employment efforts and specifically about the statement in paragraphs 22-23 of his affidavit that “Following my termination, I made diligent efforts to secure new employment”. The plaintiff exhibited to his affidavit copies of his job search applications and he testified that the first job opportunity that he was able to secure was a short term contract with (Bruce Power) as an independent contractor, with a position title of Transportation Officer, paying $60 an hour, on a renewable 6 month contract.

[18] The plaintiff’s evidence and his answers to counsel’s questions on cross-examination, support his position and satisfy me that he took all reasonable steps to find suitable new employment in a timely way, particularly in view of his age, lack of university training and the specialized nature of his technical expertise.

[19] In summary, I find that the defendant has failed to put forward any credible evidence that the plaintiff failed to mitigate his loss of employment. I therefore find that the plaintiff acted reasonably in mitigating his losses and therefore I would not reduce the common law notice period for any failure to mitigate.

[20] Plaintiff’s counsel provided his calculation of the plaintiff’s damages for loss of income and benefits over the 16 month reasonable notice period, less the off-setting income received during that period from the defendant’s severance payments and the net income from his new employment at Bruce Power. I accept the figures as set out below and find that the plaintiff is entitled to damages for lack of reasonable notice in the sum of $87,294.76.

Total annual income on date of termination: $ 85,424.00
Claimed Notice period – 16 months – to Dec/11: $113,898.00
Subtract mitigation income from CTSNA (Bruce Power) earned from June/11 – Dec/11 see Tab O of business Income - $ 23,880.00

$ 90,018.00

Subtract 12 weeks paid by defendant after termination: - $ 19,113.24

$ 70,904.76

Loss of Benefits @ 10%, over 16 months: $ 11,390.00
Employer’s RRSP contribution over 16 months: $ 5,000.00

$ 70,904.76

• 11,390.00
• 5,000.00

$ 87,294.76

Aggravated or Punitive Damages

[21] The plaintiff further claims damages on an aggravated or punitive basis. Because I consider this issue to raise matters of credibility requiring a trial, I discuss this only so far as to outline the parties’ positions and to explain why I reject the plaintiff’s submission that I should accept his entitlement to such damages simply on the basis of the affidavit materials presently before the court.

[22] The plaintiff returned to work from a three month medical leave on May 3, 2010 to discover that a Mr. Ghosh had been retained during his absence and assigned the plaintiff’s former job title of Radiation Safety Officer. Apart from the job title the plaintiff acknowledges that he did resume substantially all of his former duties. Two days after his return, in the course of an inspection by the Canada Nuclear Safety Commission, Mr. Ghosh stated to the inspectors, according to the plaintiff and his supervisor, that the plaintiff would never be Radiation Safety Officer again “because the company wanted someone younger and healthier”. Mr. Ghosh denies making this statement in his responding affidavit. There are apparently several witnesses to this conversation whose evidence is not presently before the court.

[23] A conflictual situation developed between the plaintiff and his supervisor on the one hand and Mr. Ghosh on the other and Ms. Sharma was aware of this situation. She offers her opinion in her affidavit that the plaintiff and his supervisor were responsible for these difficulties.

[24] On August 6, 2010 the plaintiff made a complaint (by e-mail to Human Resources) complaining of unfair treatment and discrimination. He states in his affidavit that the Human Resources Manager, Ms. Sharma, responded by threatening him with termination if he did not withdraw the complaint. Ms. Sharma denies this in her affidavit. The evidence is that the plaintiff did not withdraw his complaint and was summarily terminated by the defendant by letter dated August 18, 2010.

[25] The plaintiff claims he was terminated in retaliation for his workplace complaint. The Human Resources Manager, Ms. Sharma states that while the timing was “unfortunate”, the plaintiff was in fact terminated due to a re-organization, which involved re-assignment of the plaintiff’s job duties to other employees.

[26] While the plaintiff’s version of events, if accepted, might form the basis for an award of aggravated (Wallace) damages and punitive damages, I am of the opinion that viva voce evidence is required to determine if the discriminatory remarks were made and whether the plaintiff was terminated on a retaliatory basis for his workplace complaint. The plaintiff also raises the issue of whether this employer engages in a practise of providing only the statutory minimum notice to terminated employees and relies on this as a basis for claiming punitive damages.

[27] I would note that I accept the defendant’s argument and the plaintiff concedes the point, that the plaintiff’s claim for damages for discrimination, based apparently on s. 46.1 of the Ontario Human Rights Code R.S.O. 1990, c. H. 19, as amended cannot apply to this federally regulated defendant. The Canadian Human Rights Act contains no similar provision. On the other hand, in my opinion the conduct complained of, if substantiated, can be considered in relation to the plaintiff’s claim for aggravated or punitive damages.

[28] The plaintiff’s special damages claim is a discrete issue as to whether certain travel and lodging expenses related to his new employment can be claimed in the circumstances, as to which explanatory evidence will be required.

[29] In summary I order as follows:

(a) The plaintiff is awarded damages in the sum of $87,294.76 together with pre-judgment interest and costs to be determined at the completion of the trial;

(b) There will be a summary trial before me, not to exceed two days in length, on the issues:

(i) Is the plaintiff entitled to aggravated or punitive damages?

(ii) What special damages is the plaintiff entitled to claim in respect of the notice period?

(c) The parties may rely on the affidavits previously filed as their evidence in chief and the deponents will be produced at trial for cross-examination. ‘Will say’ statements are to be provided for any additional witnesses. Counsel are to agree on a schedule and timing of witnesses to be reviewed by the court at a trial management conference.

Mr. Justice Charles T. Hackland

Released: June 24, 2014