ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE NO.: 13-56404
DATE: July 14, 2014
B E T W E E N:
MATTHEW ARNONE
Robert Monti and Marie-Pierre Pilon, for the Plaintiff
Plaintiff
- and -
BEST THERATRONICS LIMITED
George Vuicie and Siobhan O’Brien, for the Defendant
Defendant
HEARD: April 8, 2014
REASONS FOR DECISION
James J.
Introduction
[1] This is a motion for summary judgment brought by the plaintiff in an action where he seeks damages as a result of the termination of his employment without cause.
[2] For the reasons that follow I have determined that the plaintiff is entitled to summary judgment.
Overview
[3] The plaintiff in this case was fifty-three years old when he was dismissed on November 26, 2012 after thirty-one years of service. The defendant was engaged in the business of manufacturing nuclear medicine equipment. Prior to the termination of his employment, the plaintiff occupied the position of manager, inside sales and customer support. At the time of termination, the plaintiff made about $95,000 per year. He was 16.8 months away from the date upon which he would be entitled to receive a full, unreduced pension upon retirement.
[4] One of the benefits available to the plaintiff upon retirement was a retiring allowance equal to one week for each year of service to a maximum of 30 weeks. Because he was terminated prior to retirement, this benefit was not available to him.
[5] His termination pay was based on the statutory minimum allowed under the Canada Labour Code of about 14.4 weeks of salary continuance.
Position of the Plaintiff
[6] The plaintiff claims compensatory damages equal to twenty-four months’ pay in lieu of notice, less the amount already paid by the defendant for salary continuance and less income earned by the plaintiff from other sources of employment during the notice period.
[7] The plaintiff also claims the sum of $65,000 representing an actuarial calculation of the amount necessary to compensate him for the fact that he should be receiving his full pension.
[8] As well, the plaintiff claims compensation for the loss of his retirement allowance.
[9] The plaintiff says that he was working as a manager prior to his dismissal but because the defendant takes issue with the characterization of his job description and duties, the plaintiff is prepared to concede for the purposes of this motion to the defendant’s contention that the plaintiff’s employment can best be characterized as that of a supervisor rather than a manager. The plaintiff does so in an effort to neutralize the defendant’s argument that the determination of the character of the plaintiff’s employment requires a trial.
Position of the Defendant
[10] The defendant says that at the time of his dismissal, the plaintiff held the position of external beam therapy, customer sales and support specialist.
[11] Following termination, his salary was continued for 14.4 weeks to March 6, 2013.
[12] The defendant states that the plaintiff was not eligible for a retirement allowance because he was terminated due to restructuring.
[13] The defendant says the character of the plaintiff’s employment is a genuine issue for trial. At best the plaintiff occupied the lowest level supervisory position.
[14] The plaintiff says that the second genuine issue for trial is the question of the availability of similar employment, having regard to the experience, training and qualifications of the plaintiff.
[15] A separate but related issue is the question of whether the plaintiff took reasonable steps to mitigate his damages. The defendant says that notwithstanding the plaintiff’s evidence that he responded to over 800 job postings, in fact there were a variety of sales positions available in the Ottawa area during the year following his employment that he did not apply for.
[16] The defendant submits that the documentary record does not permit a proper and fair resolution of these issues on a motion for summary judgment.
Discussion and Analysis
[17] Motions for summary judgment are governed by the principles set out in the recent decision of Hryniak v. Mauldin, 2014 SCC 7 where Justice Karakatsanis said as follows:
Summary judgment motions must be granted whenever there is no genuine issue requiring a trial (para. 47)… There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of the motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and
(3) it is a proportional, more expeditious and less expensive means to achieve a just result (para. 49)… The enhanced fact-finding powers granted to motion judges in Rule 20.04(2.1) may be employed on a motion for summary judgment unless it is in the “interests of justice” for them to be exercised only at trial (para. 53).
In this case, the issues can be determined fairly and justly without a trial. The documentary record is both extensive and reliable. Several affiants have been cross-examined. While the parties may not agree on all the facts, the material facts necessary to achieve a just result are established by the available evidence and form part of the record on this motion. Cases involving the determination of a reasonable notice period are well-suited to be dealt with by way of a motion for summary judgment.
i. The Notice Period
[18] Where the employment of an employee is terminated without just cause, the employee is entitled to reasonable notice of his or her pending termination of employment. The statutory notice contained in various statutes relating to employer-employee relations is different than the common law notion of reasonable notice. An appropriate notice is determined by a consideration of relevant factors at the time of dismissal. These are sometimes referred to as the Bardal factors from the decision of McRuer C.J.H.C. in Bardal v. The Globe and Mail Limited (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140 where he said that:
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. (paragraph 21).
[19] Of particular importance in the circumstances of this case is the fact that the plaintiff was 16.8 months from achieving full pension entitlement. This doesn’t mean that the plaintiff had to retire in 16.8 months but rather that upon the expiration of that period of time he would be entitled to receive an unreduced pension. Time to retirement is an obvious consideration when long-term employees are dismissed due to restructuring. In such circumstances it is also common that the employer does not have an expectation of mitigation because the bridging period is may be less than the notice period that would otherwise be applicable.
[20] The plaintiff says that since the defendant chose not to bridge the plaintiff to retirement as a consequence of his dismissal, the issue is no longer relevant. Accordingly, the plaintiff asserts that an appropriate notice period in the particular circumstances of this plaintiff would be twenty-four months. I do not agree. In my view, the fact that the plaintiff was less than two years away from being entitled to an unreduced pension should not be ignored in the factual matrix surrounding his termination.
[21] Objectively assessed, it seems to me that the most reasonable view of the situation prevailing at the time of termination would be to recognize the reality of the approaching entitlement to an unreduced pension and to factor this into a termination arrangement that included the other benefits available to the plaintiff upon retirement. In the words of Chief Justice McRuer, the reasonableness of the notice period or payment in lieu must be determined with reference to each particular case. In the text, Employment Law in Canada, 4th ed., Toronto: NexisLexis, the authors observe that:
“The “reasonable” notice test has afforded the courts enormous leeway in fashioning notice periods according to their own perception of what is fair for the parties and what furthers the public good in prevailing social and economic conditions (§14.180).”
[22] There is no reasonable doubt that the plaintiff would be entitled to at least seventeen months’ notice (subject to mitigation considerations) regardless of the subtle distinctions urged by the defendant respecting the character of the plaintiff’s employment.
ii. Availability of Similar Employment
[23] The plaintiff has spent his entire career working in the field of Cobalt 60 industrial and medical equipment. He has a college level designation as a mechanical engineering technologist. He performed at least supervisory, if not managerial, functions. He had about eight employees reporting to him.
[24] The defendant’s suggestion that the plaintiff failed to take advantage of similar employment following his termination is not persuasive. This contention is based on a law student’s affidavit wherein he identified thirty-nine sales and technical positions in the Ottawa area in a seven month period from December 1, 2012 until June 31, 2013. A review of these positions includes employment as a route sales representative (qualifications were a secondary school diploma), a full time sales supervisor at a pharmacy, an opportunity as a showroom sales team member at a kitchen and bath outlet and several sales positions in retail stores. The suggestion that the list represents “similar employment” is plainly without merit. This argument may be compared with the plaintiff’s evidence that he applied for over 800 positions in a sixteen month period and accepted employment as a part-time stocker at a Wal-Mart outlet and as an assistant manager at a grocery store.
iii. Failure to Mitigate
[25] The defendant has an onerous burden of proof to demonstrate that the plaintiff has failed to mitigate his damages. (See Red Deer College v. Michaels, [1976] S.C.R. 234 at paragraph 11).
[26] Where an employee has been discharged without fault on his part, and the evidence shows that he applied for over 800 positions and accepted employment in retail and grocery stores in an effort to earn at least some income, the question of whether the discharged employee has made a reasonable effort to mitigate his damages does not require a trial.
iv. Assessment of Damages
[27] As indicated above, the plaintiff contends that he is entitled to twenty-four months’ pay in lieu of notice. But for the particular circumstances applicable to this case and the availability of an unreduced pension commencing 16.8 months from the time of his dismissal, I would hold that a reasonable notice period would amount to twenty-two months.
[28] At the same time, there should not be a reduction imposed upon the plaintiff due to income earned at subsequent places of employment. An arrangement to bridge an employee to the point he or she would receive an unreduced pension in circumstances where this period of time is less than the appropriate common law notice period would reasonably include a concession on the part of the employer not to require mitigation efforts. In my view, in these circumstances, the defendant should not have the benefit of a credit for income earned by the plaintiff from subsequent employment.
[29] The plaintiff has also adduced into evidence an actuarial report indicating that the financial impact of his termination in circumstances where he was unable to achieve a full, unreduced pension amounts to $65,000. This evidence is based on the report of Joann Williams, an actuary with Welton Parent Inc., which indicates the present value required to invest outside the plaintiff’s pension to replace the monthly loss he will incur in his retirement years is the sum of $65,000. The defendant’s decision not to protect the plaintiff’s entitlement to an unreduced pension warrants the award of a monetary amount to compensate him for this loss.
[30] Additionally, the plaintiff was entitled to a retirement allowance of one week for each year of employment to a maximum of thirty weeks. The availability of this allowance ought to have been part of an arrangement to bring the employee’s employment to an end without affecting his pension.
Disposition
[31] The plaintiff shall have judgment for:
a. damages equal to the gross amount of salary the plaintiff would have earned until he qualified for an unreduced pension, less payments made to him to satisfy the statutory obligations of the employer;
b. $65,000 representing the present value of the loss of an unreduced pension;
c. a retirement allowance equal to 30 weeks’ pay, and
d. pre-judgment and post-judgment interest in accordance with the Courts of Justice Act. The date of commencement of accrual of interest for each of the heads of recovery shall be the date of termination.
[32] Following oral argument, the parties provided copies of their costs outlines. The plaintiff claims costs of the motion and the action of $63,350. including HST on a partial indemnity basis (66% of actual costs) and $85,926. on a substantial indemnity basis (90% of actual costs) plus disbursements of $4,280.09. The defendant claims costs of $35,539 inclusive of HST and disbursements on a partial indemnity basis and $48,946 on a full indemnity basis. The plaintiff included a substantial amount for the services of a law clerk at a billing rate of $145 per hour but the details of the service provided were not disclosed. In addition, the plaintiff claimed $35,368 on a partial indemnity basis for the summary judgment motion which strikes me as somewhat excessive to request to be paid by the losing party. I have concluded that the defendant ought to pay costs to the plaintiff of $48,000.00 inclusive of HST plus disbursements as requested of $4,280.09 for a total of $52,280.09.
Mr. Justice Martin James
DATE RELEASED: July 14, 2014
OTTAWA COURT FILE NO.: 13-56404
DATE: July 14, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MATTHEW ARNONE
Plaintiff
--and—
BEST THERATRONICS LIMITED
Defendant
REASONS FOR DECISION
Mr. Justice Martin James
DATE RELEASED: July 14, 2014