ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-456306
DATE: 20141204
B E T W E E N :
GIACOMO VIOLO, also known as JACK VIOLO
Plaintiff
– and –
DELPHI COMMUNICATIONS INC.
Defendant
Guy Hunter
for the Plaintiff
No one appearing for the Defendant
HEARD: DECEMBER 2, 2014
AMENDED REASONS FOR JUDGMENT
chapnik j.:
[1] This wrongful dismissal action was scheduled to be heard on December 2, 2014 as a Simplified Trial pursuant to Rule 76 of the Rules of Civil Procedure. By letter dated November 27, 2014, the defendant’s solicitor, Matthew L. Dewar of Levitt & Grosman LLP, wrote to the Trial Coordinator, stating:
As we informed the pretrial judge and counsel for the plaintiff, the defendant is insolvent and we have no retainer or instructions to act on its behalf in any way. Consequently, the defendant will not be represented at the hearing of this matter nor will anyone be attending.
[2] I was satisfied the defendant had been properly served with the Trial Record and other relevant documents and had chosen not to attend at trial. Accordingly, an order was issued pursuant to Rule 52.01(1)(a) directing the trial to proceed in the defendant’s absence. Given this situation, the plaintiff proceeded to prove his claim for damages.
background
[3] The plaintiff was employed as a waiter/bartender at Roma Restaurant in Toronto (the restaurant) for a period of 29 years. During the first 28 years, the owners of the restaurant were his brother and sister-in-law. In late 2009, the defendant Corporation purchased the restaurant.
[4] At the time of the plaintiff’s dismissal on October 2, 2010, he was 51 years of age. In its pleadings the defendant claims just cause for the dismissal, including allegations of chronic lateness for work, alcoholism and the plaintiff’s discourteous and boisterous nature.
[5] The official reason for dismissal given to the plaintiff on October 2, 2010 was that he had arrived late for work that day. He does not deny being late that day, but contends that the defendant manipulated his work hours the prior evening and in reality, wanted to give his job to someone else.
[6] The plaintiff gave evidence viva voce at trial in that regard. He also filed a plethora of affidavits and other evidence directed to the events underlying his dismissal.
the issue of cause
[7] Plaintiff’s counsel spent much time at trial and in the materials filed, arguing the issue of cause. I am satisfied that, contrary to the defendant’s pleading, there was no cause for the plaintiff’s dismissal. The allegation of “chronic lateness” or failure to show up for work, for example, is contradicted by the defendant’s own records.
[8] As for the allegation of excessive alcoholism, I accept the evidence of the plaintiff and the sworn testimony of Andrea Leraci, to the contrary. Mr. Leraci worked at the restaurant with the plaintiff before and after the change in ownership and was the manager at the front of the restaurant when the plaintiff was fired in 2010. He deposed, among other things, that the plaintiff was never drunk at work. In his words,
At no time did Jack ever come to work drunk in all the time I worked with him … I have never seen Jack drunk at work.
[9] Similarly, the plaintiff has debunked, with credible evidence which I accept, the claim that he was “discourteous to clients”.
[10] In another affidavit, sworn October 14, 2014 Mr. Leraci described the plaintiff’s relationship with clients as “excellent”. According to him, the plaintiff “was always smiling and joking with them”. He also described the plaintiff’s professional manner while at work and his loyalty to management.
[11] I find that the plaintiff has proven his claim for wrongful dismissal. Dismissing the plaintiff for arriving late is grossly disproportionate response to such misconduct and does not satisfy the contextual approach to just cause developed by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38, [2001] S.C.R. 161.
[12] In any event, the onus is on the defendant to prove just cause and it has chosen not to appear: Montoya v. Ducasse, [1998] O.J. No. 5241, 84 A.C.W.S. (3d) 699 at para. 14 citing Ball v. MacMillian Blodel Ltd. (1989), 29 C.C.E.L. 99 (B.C.S.C.) at para. 45.
reasonable notice
[13] What period of reasonable notice is the plaintiff entitled to in these circumstances? Clearly, reasonable notice varies with the circumstances of the case.
[14] The paradigm case in this area of law is that of Bardal v. Globe and Mail Ltd., [1960] .J. No. 149, 1960 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.), in which McRuer C.J.H.C. sets out some of the criteria for the assessment of reasonableness at para. 145, as follows:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. 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.
[15] The plaintiff claims that given the plaintiff’s “expertise, qualifications and 29 years’ experience” he is entitled to 15-18 months’ notice.
[16] I am satisfied that the case law supports the plaintiff’s position that the entire 29 year period of employment be considered, despite the fact that the plaintiff was only employed by the defendant for a period of 11 months. As the plaintiff retained employment at the restaurant following its sale to the defendant, he is entitled to rely on his previous history at the restaurant for the calculation of reasonable notice upon his termination: see, for example, Sorel v. Tomenson Saunders Whitehead Ltd. (1987), 16 C.C.E.L. 23 (B.C.C.A.). Thus, this Court will consider the plaintiff’s entire length of service as a waiter/occasional bartender in the restaurant for the purpose of determining the appropriate notice period.
[17] As for the nature of the employment, in his affidavit Mr. Leraci noted that the plaintiff (Jack) was “useful to the new business in training new staff; and he trained 3 or 4 staff before he was terminated”. Counsel likened the plaintiff’s situation to that of others in cases such as Sorel, supra, in that the plaintiff there, a long-time employee, was 50 years of age at the time of his dismissal. In that case, however, the plaintiff had been a senior and skilled employee for many years. In the instant case, the plaintiff testified that he basically worked either three or four nights on evening shifts per week and only on Monday nights when he was the sole staff member present did he had to attend the bar as well as serve customers.
[18] I find on the whole of the evidence that the plaintiff was not a “senior” or “skilled” employee, as those terms are generally understood in the relevant jurisprudence or in ordinary parlance. The restaurant was a relatively small enterprise and although there is no ceiling for low skilled employees when determining the appropriate notice, as noted in Bardal, supra, the character of the employment is a factor to be considered.
[19] At the same time, I accept the contention of the plaintiff that given his experience, qualifications and age at the time of his termination, it might be difficult for him to find alternative employment. In his words, most restaurant establishments want “young, pretty females” to take over similar work. Moreover, on the uncontradicted evidence at trial submitted by the plaintiff, these were the type of individuals generally hired by the defendant after purchasing the business. Upon review of the case law and given the above factors, it is my view that the plaintiff is entitled to reasonable notice for a period of 15 months.
the issue of discrimination
[20] The plaintiff alleges that the underlying reason for his dismissal was that the principal of the defendant company wanted to replace him with a younger female staff person, in particular, a young waitress with whom the principal was having an affair.
[21] According to the plaintiff, the new owner “had a preference for employing pretty young women staff and employing only women except for one man since he took charge of the restaurant.” Moreover, prior to the dismissal of the plaintiff, the defendant fired the only other wait staff who was over 40 years of age, a female and an excellent server.
[22] The plaintiff seeks $20,000 (at trial reduced to about $7,000) for the discriminatory firing of the plaintiff in addition to damages for wrongful dismissal. Specifically, while he claims no damages in this action for the manner of his dismissal, he claims discriminatory damages for his being dismissed on the basis of age or sex contrary to section 5 of the Ontario Human Rights Code, RSO 1990, c H.19.
[23] In my view, the plaintiff has not proven this aspect of the case. I can find no credible evidence that the defendant discriminated against the plaintiff on a prohibited ground either in his scheduling of work or his dismissal.
[24] This is not a case where a person under a disability is discriminated against on that ground. This heading of damages has not been properly pleaded or proven. The bald statement of the plaintiff that he was fired as he was not a pretty young waitress is not sufficient. Stating that the defendant had this “preference” without proffering any names or numbers in support of the defendant’s alleged hiring practice is not persuasive. Moreover, no evidence was provided as to the impact of the firing on the plaintiff save and except his inability to obtain alternate employment, that is, there was no evidence detailing hurt feelings, lack of self-respect, humiliation or an affront to the plaintiff’s dignity. Indeed, when asked how he felt after the firing, the plaintiff responded “I – kinda lost”.
[25] There will be no assessment for non-pecuniary discriminatory damages in this case.
damages
[26] The documentary evidence demonstrates that the plaintiff earned approximately $19,000 in salary in 2009. In giving his testimony, he explained that he earned about $10 per hour in salary and worked for 30 to 40 hours a week, mostly in the evening shift and on weekends.
[27] There was also the matter of tips. When Andrea Leraci became the lead server after the plaintiff left, he made about $120 in tips when working on Thursday, Friday and Saturday evenings. Although the plaintiff did not claim tips in his income tax returns prior to 2010, in 2010 he claimed $9,025 in tip income, almost as much as his income from wages.
[28] The plaintiff claims that he would have made $150 per night or $450 per week in tips during the notice period. Accordingly, he seeks the sum of $45,627.96 per year as a waiter/bartender or $3,802.33 per month based on the employer’s time records. It is noted, however, that in his Statement of Claim the plaintiff had claimed $39,000 as his annual salary including tips or $3,250 per month. In my view, the latter more closely accords with the evidence in this case.
[29] It is noted that in some cases the courts have awarded tips to employees even when this income was not reported to Revenue Canada. See, for example, Minns v. 943372 Ontario Inc. 1999 CarswellOnt 2997 (S.C.J.) at para. 36 and 38.
[30] I find that in the circumstances of this particular case, gratuities formed part of the plaintiff’s remuneration. On the other hand, I see no basis for the assertion that the plaintiff would earn more nightly than his protégé and successor, Mr. Leraci.
mitigation
[31] The plaintiff has produced evidence of his efforts to find employment and the problems encountered given he is over 50 and in view of the industry’s alleged bias against the hiring of older staff. I am satisfied that he has made reasonable efforts to find alternative employment but has been unsuccessful. As a result, he has been on social assistance for about 4 years since his dismissal. In addition, he earned approximately $3,500 per annum in income during the relevant time period working for his son and his brother.
summary
[32] In summary, I have found that the plaintiff was wrongfully dismissed by the defendant in October 2010 after working as a server at the restaurant for a period of 29 years.
[33] I also hold that he is entitled to reasonable notice for a period of 15 months. Based on the whole of the evidence, I accept the figure of $39,000 per annum for his salary inclusive of tips during that period, which equates to $3,250 per month. Thus, I assess his damages as $3,250 x 15 or $48,750 minus the $3,500 he earned in 2011.
[34] The total in damages to which the plaintiff is entitled due to his wrongful dismissal is, therefore, the sum of $45,250.
costs
[35] In counsel’s Costs Brief, he claims various levels of fees in light of various offers made by the plaintiff to the defendant to settle the action.
[36] The first offer to settle dated June 19, 2012 was for a payment to the plaintiff of $42,000 in damages plus $1,200 in costs to that date and 50% of additional legal fees incurred to the date of acceptance. Other offers lowered the amount of recovery the plaintiff would accept but added other stipulations or were time limited.
[37] Given that costs are discretionary and having considered the plaintiff’s Costs Brief, the prevailing jurisprudence, the factors set out in Rule 57.01, the non-appearance of the defendant, and the offers to settle, I assess the plaintiff’s costs at the sum of $30,000 in costs plus HST and $2,500 in disbursements, for a total costs award of $32,500.
conclusion
[38] Judgment shall issue in favour of the plaintiff as against the defendant for the sum of $45,250 in damages plus the all-inclusive sum of $32,500 for costs.
CHAPNIK J.
RELEASED: December 4, 2014
CORRECTION NOTICE
Corrected decision: The text of the original judgment was corrected on December 12, 2014, and the description of the corrections is appended:
- page 5, paragraph 36, second line – “$12,000 in costs” was changed to “$1,200 in costs”
- page 5, paragraph 37, third line – “costs at the sum of $30,000 plus disbursements of $2,500” was changed to “30,000 in costs plus HST and $2500 in disbursements”
COURT FILE NO.: CV-12-456306
DATE: 20141204
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
GIACOMO VIOLO, also known as JACK VIOLO
Plaintiff
– and –
DELPHI COMMUNICATIONS INC.
Defendant
AMENDED REASONS FOR JUDGMENT
CHAPNIK J.
RELEASED: December 4, 2014