ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-497852
DATE: 20141211

BETWEEN:

Anna Donath
Plaintiff

– and –

Hughes Containers Ltd.
Defendant

James Heeney and Sarah Vokey, for the Plaintiff

Rich Appiah, for the Defendant

HEARD: November 20, 2014

Pollak J.

[1] The Plaintiff, Anna Donath, had been employed for 14 years by the Defendant, Hughes Containers Ltd., at the time of her termination of employment as a result of company downsizing. She was earning $46,500 annually as an Accounts Receivable/Payroll Administrator and was 64 years old. The parties are agreed that her monthly compensation for the purposes of this wrongful dismissal action is $3,875. In lieu of reasonable notice, the Defendant paid the Plaintiff $19,673.06, which is approximately equivalent to four months’ compensation.

[2] The Plaintiff submits that she should have been paid 22 months’ compensation and the Defendant replies that the amount already paid is within the “reasonable range” of payment in lieu of reasonable notice of termination of employment. The Plaintiff’s termination occurred ten months before the trial.

[3] The parties agree that the payment of $19,673.06 should be deducted from any amount awarded by the Court as pay in lieu of reasonable notice.

[4] Further, the parties agree that the Plaintiff is obliged to mitigate any damages arising from the Defendant’s failure to give her sufficient pay in lieu of reasonable notice. Any employment income that the Plaintiff earns over the course of the reasonable notice period must therefore be deducted from any award of damages.

[5] Considering that the Plaintiff claimed 22 months’ compensation, but only 10 months had elapsed since her termination of employment, the Defendant raised the issue of what would happen if the Court awarded the Plaintiff an amount exceeding 10 months’ compensation. The Defendant submits that such an award would have the practical effect of removing the Plaintiff's obligation to mitigate her damages.

[6] At the commencement of the trial, and before any evidence was heard, the Court raised this issue. The Plaintiff initially asked for an adjournment, but then asked to proceed with the trial and to address this issue in argument.

[7] The first issue for the Court to determine is the amount of reasonable notice to which the Plaintiff is entitled as a result of her termination of employment. The parties agree that determining this amount requires the Court to take a “holistic approach” in considering the factors set out in Bardal v. Globe & Mail Ltd., 1960 294 (ON SC), 24 D.L.R. (2d) 140, [1960] O.J. No. 149 (H.C.J.), and Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469.

[8] I have considered the authorities submitted by both parties on this issue and have assessed the evidence with respect to the “Bardal factors.” In rendering my decision, I find that the analysis applied by this Court at paras. 40-42 in Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 (“Rubin”) is helpful:

[40] In this case, the following factors should be accounted for:

(a) Eric Rubin’s role and responsibilities as a competitive shopper;

(b) Eric Rubin’s nineteen years and eight months of continuous service;

(c) Eric Rubin’s age of sixty-three years; and,

(d) the difficulty Eric Rubin will, and has, experienced finding alternative employment.

[41] Eric Rubin has worked for this employer for a considerable period of time. On the other hand, the job did not include any supervisory of management responsibilities. Eric Rubin may continue to have difficulty finding further employment, but he does have knowledge that could be of benefit to a range of employers in the retail hardware business and, at sixty-three years of age, he is arriving at a time when the working life of many Canadians comes to an end.

[42] In the circumstances, I find that a reasonable period of notice would be twelve months.

[9] I note that the employee in Rubin had more years of service than the Plaintiff. Applying the “Bardal factors,” I find that the Defendant is obliged to pay the Plaintiff 12 months’ compensation in lieu of reasonable notice.

[10] Although I have found that 12 months’ compensation is reasonable, only 10 months have passed since the Plaintiff’s termination. Therefore, the next issue before the Court is to determine what amount of compensation can actually be awarded to the Plaintiff.

[11] The Plaintiff submits that the Court should award her the amount of damages it has assessed for the entire reasonable notice period, i.e. 12 months’ compensation, notwithstanding the fact that this notice period has not yet expired.

[12] In response, the Defendant raises the following issues. If awarded the full amount, will the Plaintiff continue to fulfil her obligation to mitigate her damages? What would happen if the Plaintiff finds alternate employment during the remaining two months of the reasonable notice period? The Defendant submits that the parties should be permitted to return to Court so that the Plaintiff’s mitigation efforts can be tested once the reasonable notice period has expired.

[13] The Plaintiff’s evidence on this issue consists of a chart setting out the titles of the 141 jobs for which she has applied and her testimony that she received only 3 telephone interviews from these job applications. She emphasizes the fact that she is now 65 years old. The Plaintiff submits that the Court should conclude, on the basis of this evidence alone, that she will not be able to find employment for the balance of any period of reasonable notice that this Court may assess. She submits that her age will play a significant factor in her re-employment, that her prospects of re-employment are negligible, and that she is unlikely to find comparable employment of any kind.

[14] In the alternative, the Plaintiff submits that this Court ought to follow the approach taken in the case of Hussain v. Suzuki Canada Ltd., 100 C.C.E.L. (3d) 295, [2011] O.J. No. 6355 (Ont. S.C.J.) (“Suzuki”). In that case, the Court assessed a 1% chance of re-employment for a 65-year-old employee who had been unemployed for approximately the same length of time as the Plaintiff and had applied for 27 positions. The Plaintiff contrasts this with her 141 job applications.

[15] The Defendant submits that the Court cannot make such a finding on the evidence before it. For example, there was no evidence with respect to the state of the market for the type of jobs for which the Plaintiff was qualified to apply and that she could perform.

[16] I do not find that the Plaintiff provided the Court with a proper evidentiary base on which to make the finding that she will not find a job during the balance of the notice period and thus cannot mitigate her damages. The evidence shows that the chances of re-employment for the Plaintiff are low, but does not establish that re-employment during the notice period is not possible.

[17] The pretrial of this action was on September 12, 2014. At that time, the parties were given this trial date. The Plaintiff knew that the trial would take place before the expiration of what she submits is the reasonable notice period and the Court raised this concern with the Plaintiff at the beginning of the trial. The difficulty in this case arises because the Court has not accepted the Plaintiff’s evidence to find that she will not be able to mitigate her damages for the balance of the notice period. In these circumstances, the Plaintiff could have adduced evidence of the job market for persons in similar circumstances, but she did not. Although the Plaintiff asked this Court to apply the reasoning in Suzuki, I declined to do so because I am of the view that there is no evidence upon which to make that finding.

[18] This is an action for wrongful dismissal, based on the Defendant’s breach of contract for failure to give reasonable notice of termination of employment. To be awarded damages for breach of contract, the Plaintiff must have incurred damages. The Plaintiff has shown that she has not been able to find employment for 10 months. I have found that the reasonable period of notice is 12 months. There is not enough evidence with respect to whether the Plaintiff will actually find employment in the next two months, which is the balance of the reasonable notice period.

[19] The Plaintiff accepted the trial date knowing that the trial would be heard only 10 months after her termination of employment. The Plaintiff chose to deal with this issue by submitting that the Court should make the evidentiary finding that she would not be able to find employment in the next two months because she had not been able to do so in the past ten months, which the Court declined to do.

[20] The trial has finished. An adjournment of this trial is therefore not possible and it is neither proper nor advisable to re-open the trial now in order to deal with the issue of damages. In the circumstances of this case, the Court will award to the Plaintiff the damages that she has proven: 10 months’ compensation less the amount she has already been paid by the Defendant. This amount is subject to all of the applicable statutory deductions, together with all pre- and post-judgment interest.

[21] The Court was referred to jurisprudence wherein this issue had been dealt with in a variety of ways, depending on the facts of the case. I find that it is appropriate, in light of the circumstances of this case, for the Court to make this award as follows with respect to the balance of the notice period: as there are only two months left in the Plaintiff’s period of reasonable notice, the Defendant shall pay to the Plaintiff, two months of her compensation in the monthly amount the parties have agreed to. This obligation of the Defendant to pay is subject to the Plaintiff’s ability and obligation to mitigate her damages and to a deduction for any earnings from employment or a business. The payment shall be made to the Plaintiff subject to these mitigation requirements, after a total of twelve months have passed since the date of the Plaintiff’s termination of employment. This payment is also subject to post judgment interest commencing on the date which is twelve months after the termination of employment.

Costs

[22] Subject to any agreement between the parties, brief written submissions on costs are to be made as follows.

[23] As the successful party, the Plaintiff is entitled to an award of costs to be paid by the Defendant. If the parties are unable to agree on the issue of costs, they may make brief written submissions. The Plaintiff must deliver her costs submissions by 12:00 p.m. on January 5, 2015, with the Defendant’s to be delivered by 12:00 p.m. on January 12, 2015. In accordance with what the rules provide, the submissions should not exceed three pages in length and they should include a bill of costs, together with information on each lawyer’s year of call and actual billing rate. If there are any offers of settlement that bear on the issue of costs, these should be included as well.

Pollak J.

Released: December 11, 2014

COURT FILE NO.: CV-14-497852
DATE: 20141211

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Anna Donath
Plaintiff

– and –

Hughes Containers Ltd.
Defendant

REASONS FOR JUDGMENT

Pollak J.

Released: December 11, 2014