ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-113-00SR

DATE: 20141119

BETWEEN:

VIRGINIA ZEATS
Plaintiff

– and –

LYLE A. SULLIVAN
Defendant

James E. Bowden, for the Plaintiff

No One Appearing, for the Defendant

HEARD: November 17, 2014

Eberhard J.:

[1] This matter was called for trial November 17, 2014 having been adjourned from previous trial sittings due to the hospitalization of the Defendant. He has not appeared today despite the court standing the matter down to the afternoon to further serve notice on the Defendant that the trial would be proceeding. My direction was served personally on the spouse of the Defendant but neither the Defendant nor his spouse attended at 2:15 p.m. despite my endorsed invitation that anticipated hearing submissions as to why the trial should not proceed. Having no response to this nor any prior service within the rules, I heard the trial in the absence of the Defendant as my served endorsement indicated I would do.

[2] The Plaintiff testified and I find that she was employed by the Defendant, a lawyer, in a clerical capacity first while he was a sole practitioner, then while he was in partnership with another lawyer and then again while he was a sole practitioner. This employment relationship, from March 29, 1976 to January 29, 2010 was more than 33 years. The Plaintiff was 66 years of age when her employment was terminated. She had felt she was not ready for retirement and intended to work two more years.

[3] There is no evidence of any attempt to find work after the Law Society employed her for two weeks after termination to close down the office for which The Law Society paid her somewhat less than her regular wage.

[4] At termination I find she was working four days a week and earning $696 per week.

[5] I find she received no compensation upon termination and there was no compliance with The Employment Standards Act. As the person in the office who attended to payroll, she recorded that she was owed vacation pay on termination of $2349 + $362.50 ($2,711.50).

[6] There is no evidence of termination for cause nor warnings relating to the assertion in the Statement of Defence that the Plaintiff spent time on personal matters (including a private sales enterprise) while at the office.

[7] The Defendant’s office closed at the same time as the Plaintiff was terminated. The Defendant, a sole practitioner, had been attending at his office less and less in the period leading up to the closure. The Plaintiff testifies she encouraged him to seek medical attention.

[8] The Statement of Defence asserts that the Plaintiff should have known the office was necessarily going to close as the Defendant declined in his involvement and that this should have been notice to her.

[9] I have no authority to support the assertion that a loyal employee should have seen the ”writing on the wall” and that the notice period should thereby be reduced. To the contrary, authority cited by the Plaintiff included numerous cases where the termination was in the context of a shutdown of the business, albeit for financial not personal reasons. Neither the financial performance of the business[^1] nor the employer’s subsequent bankruptcy[^2] reduce the notice period.

[10] I find that the principal factors bearing on the proper length of notice, in this case, when viewed with other factors proposed by Bardal,[^3] are length of employment and the Plaintiff’s age on termination.

[11] The Ontario Court of Appeal has firmly rejected the notion that there is a cap for clerical or unskilled employees regardless of the other Bardal factors in a case upholding an award of 22 months for Mr. Di Tomaso who had worked in a non-supervisory capacity for 33 years, to his dismissal at age 62 and after numerous unsuccessful attempts to obtain new employment.[^4]

[12] The purpose of notice as a basis for compensation is helpfully discussed by the New Brunswick Court of Appeal, weaving together Ontario cases with its own:[^5]

37 I begin by addressing an issue raised by the Court motu proprio, and it is whether the trial judge fell into error by bringing into the mix the test formulated in Bardal v. Globe & Mail Ltd., 1960 294 (ON SC), [1960] O.J. No. 149 (H.C.J.) (QL). The specific concern lies with the reference to "character of employment" as a factor of influence in determining the notice of termination to which Mr. MacWilliams was entitled under his contract of employment with AMEC. In Bramble et al. v. Medis Health and Pharmaceutical Services Inc. (1999), 1999 13124 (NB CA), 214 N.B.R. (2d) 111, [1999] N.B.J. No. 307 (C.A.) (QL), the Court held that where, as is the case here, the relevance of character of employment in the pursuit of suitable substitute employment is not established by evidence, judicial notice cannot be taken of that fact and, accordingly, it must not weigh in the balance. The Court's reasons for so holding bear repeating in their entirety:

The relevance of any factor is a function of the objectives that the law seeks to attain through notice of termination of employment. The primary objective of notice is to provide the terminated employee with a reasonable opportunity to seek alternate suitable employment. See Duplessis v. Irving Pulp & Paper Limited, J.D. Irving Limited and Irving (1983), 1983 3928 (NB CA), 47 N.B.R. (2d) 11 (C.A.), at p. 25, para. 25. Its secondary objectives include the protection of the reliance and expectation interests of terminated employees, at least in cases where inducements have been offered by the employer, and the satisfaction of certain moral claims by an employee. See Wallace v. United Grain Growers Ltd., supra, at pp. 738-740 and Bishop v. Carleton Co-operative Ltd., supra, pp. 217-218, para. 10.

As a rule, a potential factor remains dormant, no matter what the concerned area of the law might be, until such time as the proven facts make it relevant. This truism applies with equal force in the field of employment law; a potential factor becomes relevant in the determination of what constitutes reasonable notice only once its application by the trier of fact is justified by the proven facts. That is not to say that supporting testimonial or documentary evidence will always be required. Frequently, the relevance of a potential factor will be indisputable and, as a result, it will be accepted by the trier of fact, without the need for specific evidence on the issue. It is commonplace that judicial notice may be taken of notorious and undisputed facts, or of facts the accuracy of which can be demonstrated by resort to readily accessible sources of indisputable reliability. See Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497; 236 N.R. 1; [1999] S.C.J. No. 12 (QL), para. 77 and R. v. Paul (T.P.) (1998), 1998 12246 (NB CA), 196 N.B.R. (2d) 292; 501 A.P.R. 292 (C.A.), at pp. 308-10, para. 18, leave to appeal denied [1998] S.C.C.A. No. 298; 235 N.R. 392; 204 N.B.R. (2d) 400; 520 A.P.R. 400 (S.C.C.).

It is the evidence and, where appropriate, judicial notice that provides the factual underpinning that triggers the application of an otherwise dormant factor. Without such an underpinning, the potential or dormant factor lacks any juristic basis for its application in a given case. It is in light of this elementary principle that the oft-quoted statement by McRuer, C.J.H.C. in Bardal v. The Globe & Mail Ltd., supra, must be understood. While the Supreme Court has noted that, in determining what constitutes reasonable notice of termination, the courts have generally applied the principles enunciated in Bardal, it has yet to enjoin courts to mechanically apply, in all cases, each and every factor enumerated in that case, including character of employment, without regard to the facts proven by the evidence or established through judicial notice.

As noted above, the four factors that were expressly mentioned in Bardal are character of employment, the employee's age and length of service as well as availability of similar employment.

Availability of similar employment is, on its face, germane to the attainment of notice's primary objective and, as such, the appropriateness of its consideration by the court in fixing notice is beyond debate.

As for length of service, its relevance to the objectives of notice is two-fold: first, where the service to the employer has been long, the notice set by the court will give legal expression to the employee's moral claim to a longer notice period; and, second, the court will take judicial notice of the difficulties encountered by long-term employees in finding alternate suitable employment. Bastarache J.A., as he then was, alludes to some of these difficulties in Bishop v. Carleton Co-operative Ltd., supra, at pp. 217-218, para. 10.

As well, the connection between the terminated employee's age and the attainment of notice's primary objective is indisputable. Iacobucci J., writing for a unanimous Supreme Court, in Law v. Canada, supra, at pp. 71-72 [N.R.], para. 101, acknowledges that judicial notice provides the juristic basis for the role played by that factor in determining what constitutes reasonable notice:

... It seems to me that the increasing difficulty with which one can find and maintain employment as one grows older is a matter of which a court may appropriately take judicial notice. Indeed, this Court has often recognized age as a factor in the context of labour force attachment and detachment. For example, writing for the majority in McKinney, 1990 60 (SCC), [1990] 3 S.C.R. 229] supra, La Forest J. stated as follows, at p. 299:

Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills.

Similar thoughts were expressed in Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R. 986, at pp. 998-99, per Iacobucci J., and at pp. 1008-09, per McLachlin J., regarding the relevance of increase[d] age to a determination of what constitutes reasonable notice of employment termination. ..."

Likewise, until very recently, character of employment weighed in the balance on the theory, frequently unstated, that judicial notice was to be taken of the fact that senior employees required more time to find suitable alternate employment. The data referred to by MacPherson J. in Cronk and by Griffith Roberts in Character of Employment and Wrongful Dismissal Notice: Cronk v. Canadian General Insurance Co., supra, have placed in serious doubt the factual assumption upon which this approach rests. The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter of common knowledge. Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy.

Bearing in mind that reasonableness of notice is a conclusion that is largely fact-driven, I find it impossible to accept as a matter of law that character of employment simpliciter is relevant in all cases, no matter what the factual record might be. Judicial notice cannot be taken of its relevance in all cases. Absent evidence showing that the character of the terminated employee's job has some relevance to the pursuit of one or more of the objectives of notice, it is irrelevant.

I am reinforced in this view not only by the realization that the traditional approach mirrors antiquated social values but, as well, by the conviction that there is no compelling policy objective or stare decisis basis warranting its retention.

It is now widely accepted that employment is an essential component of a person's self-worth. See Reference Re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; 38 D.L.R. (4th) 161, at p. 368, Machtinger v. HOJ Industries Ltd., supra, and Wallace v. United Grain Growers Ltd., supra, at para. 93. By treating junior employees unfavourably solely on the basis of the status of their employment, the traditional approach undermines, without any justification, their self-worth. As a result, courts have been justifiably uncomfortable with a continued adherence to the traditional view. This discomfort may go a long way in explaining why courts, despite the lip service paid to character of employment as a factor, have tended, of late, to award notice periods to junior employees that approximate those historically reserved for senior employees.

Nor, in my view, is there any sound policy reason for the preservation of the traditional approach. In particular, I am satisfied that there is no sound basis for the suggestion that the marginally higher termination costs that will result from longer notice periods for junior employees will have adverse repercussions on our economy. See the discussion in G. England et al., Employment Law in Canada (3rd Ed.), supra, at 14.1-14.7. Typically, the notice periods set by the courts of this province for senior employees have been somewhat lower than those set by courts in other jurisdictions. The reported cases where a senior employee has been found to be entitled to more than 20 months' notice are few and far between in this province. The record in this jurisdiction stands in sharp contrast to the situation elsewhere, particularly in Ontario, where damage awards to senior employees commonly reflect notice periods exceeding 20 months' notice. As a result, I do not accept that it would be reasonable or appropriate to eliminate the inequality in notice periods between senior and junior employees by lowering the notice periods to which the former are entitled down to the level traditionally reserved for the latter.

Finally, I am satisfied that stare decisis does not compel retention of the traditional approach. First, as noted earlier, there is no longer any juristic basis for the application, as a matter of law, of character of employment simpliciter as a determining factor. Second, the ethics of its application is very much questionable. Third, neither the Supreme Court nor this Court has had occasion to squarely address the question so that neither has, to this date, explicitly ruled that junior employees are, by the mere fact of the status of their employment in the employer's hierarchy, entitled to less notice than senior employees.

In summary, judicial notice cannot be taken of the impact of the character of the terminated employee's job on his or her quest for suitable alternate employment. Moreover, the traditional approach, to the extent that it includes a consideration of character of employment simpliciter, is antithetical to the law's ultimate goal, namely egalitarian justice, and its application is not compelled by any authority binding on this Court. In my view, it behoves this Court to discard character of employment simpliciter as a relevant factor. [paras. 57-70]

38 To be clear, I do not read Honda Canada v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, as overruling Bramble et al. v. Medis Health and Pharmaceutical Services Inc. on this point and am pleased to note the Ontario Court of Appeal takes a position that is virtually, if not exactly, on all fours. Thus, in Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, [2011] O.J. No. 2900 (QL), MacPherson J.A., writing for a unanimous panel, stated:

With regard to the appropriate weight to be given to the character of employment, I am also mindful of McRuer C.J.H.C.'s statement in Bardal at p. 145, that "[t]here can be no catalogue laid down as to what is reasonable notice in particular classes of cases." Bastarache J., writing for the majority of the Supreme Court in Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, cited this statement with approval at para. 31 and went on to caution that "[n]o one Bardal factor should be given disproportionate weight."

Crown Metal would emphasize the importance of the character of the [respondent]'s employment to minimize the reasonable notice to which he is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today a factor of declining relative importance: see Medis Health and Pharmaceutical Services Inc. v. Bramble (1999), 1999 13124 (NB CA), 175 D.L.R. (4th) 385 (N.B.C.A.) ("Bramble") and Vibert v. Paulin (2008), 2008 NBCA 23, 291 D.L.R. (4th) 302 (N.B.C.A.).

This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply be taken for granted, particularly in today's world. In Bramble, Drapeau J.A. put it this way, at para. 64:

The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter of common knowledge. Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy. [paras. 26-28] (emphasis added)

[13] In the present case the Plaintiff was nearing the end of her working life after spending 33 with the same employer. The character of her employment and the lack of evidence of attempt to find new employment add very little to those basic circumstances bearing on the “primary objective of notice is to provide the terminated employee with a reasonable opportunity to seek alternate suitable employment.”

[14] Counsel for the Plaintiff submits that a claim for more would not be unreasonable but that a range of notice of 16-24 months is proper. He submits that an upper range may not be appropriate in the circumstance of a sole practitioner employer. However he submits there ought to be damages of an exemplary or punitive nature for complete failure to honour even the modest legislated employment standards requirements.

[15] I agree that employment of this length should not be capped. I find that the intention to work two years and absence of evidence of an attempt to find other employment moderate the compensatory purpose. I find that the failure of the employer to pay even the notice required by The Employment Standards Act may, in this case where the employer’s business was closed down and he ceased to be personally effective, be subsumed in the notice based compensation.

[16] For these reasons I grant judgment in favour of the Plaintiff at $54,500 based on 18 months’ notice and calculated in Exhibit “A” on submissions together with $2,711.50 for a total of $57,211.50.

[17] I received the Plaintiff’s submissions on costs at the conclusion of trial but I declined to hear about an offer. He submitted a costs outline claiming $13,865 fees at a full indemnity scale, disbursements of $2914.79 plus $140.12 for the process server today ($3,054.91) along with taxes on fees of $1802.24. The offer was delivered to my office, at my invitation , in a sealed envelope which I did not review until the foregoing decision had been drafted.

[18] I find the formal offer was made by the Plaintiff and served April 14, 2014 which pre-dates the original trial date. The offer meets the requirements of Rule 49 and has not been withdrawn or accepted. The Plaintiff has succeeded in obtaining a judgment more favourable than the terms of the offer to settle such that Rule 49.10 is invoked and the Plaintiff is entitled to substantial indemnity costs from the date of the offer unless I order otherwise.

[19] I am fixing costs, not assessing them, at $10,000 plus HST for fees and disbursements of $3000.

Eberhard J.

Released: November 19, 2014

[^1]: Anderson v Heakon Industries (Canada) Ltd. 1987 2406 (BC CA), 1987 48 DLR(4th)235 at 240

[^2]: Noble v Principal Consultants Ltd(Trustee of) 2000 ABCA 133, 187 DLR 4th 80 ((Alta CA)

[^3]: Bardal v Globe and Mail Ltd. (1960), 1960 294 (ON SC), 24 DLR(2d) 140 (OHJ)

[^4]: Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469 para 23

[^5]: AMEC Americas Limited, dba: AMEC Earth & Environmental, a body corporate, Appellant, and Lee MacWilliams, Respondent 2012 NBCA 46, [2012] N.B.J. No. 173