Court File and Parties

CITATION: Brooks v. Conference Board of Canada, 2015 ONSC 4087

COURT FILE NO.: CV-13-59297

DATE: 2015/06/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nicole Brooks, Plaintiff

AND

Conference Board of Canada, Defendant

BEFORE: Hackland J.

COUNSEL: Paul Champ, for the Plaintiff Jock Climie, for the Defendant

HEARD: June 18, 2015 (Ottawa)

ENDORSEMENT

[1] The Plaintiff brings this motion for summary judgment to fix the period of reasonable notice arising from the termination of her employment with the Defendant. This was a not for cause termination and the employer does not allege any failure to mitigate on the Plaintiff’s part, i.e. it is accepted that she took reasonable steps to secure new employment.

[2] The parties are agreed that the issues before the Court on this motion are properly decided on a Rule 20 summary judgment motion. This is in accordance with the case law indicating that determinations of the reasonable notice period in employment cases are normally appropriate for determination by way of summary judgment, see Arnone v. Best Theratronics Ltd., 2015 ONCA 63 at para. 12 (C.A.) and Beatty v. Best Theratronics Ltd., 2015 ONCA 247 at para. 15.

[3] The Plaintiff, age 41, was hired as the Defendant’s “Senior Manager, Executive Networks” on November 1, 2010. Her employment was terminated on June 5, 2013. Therefore, her period of employment was approximately 2.5 years. Despite diligent efforts to find new employment, she remained unemployed until May of 2015, a period of nearly two years.

[4] The Plaintiff’s compensation statement, issued by her employer, sets out that her compensation for 2012 was base pay of $78,140 plus benefits, for a total compensation package of $98,445.

[5] The benefits listed on the compensation statement included, “government-sponsored benefits-Canada Pension Plan, Employment Insurance, Employment Health Tax: Total $4,827”.

[6] The Defendant submits that the employer’s contribution to CPP and EI should be excluded from the calculation of benefits due over the notice period. I disagree. The definition in the employer’s own compensation statement issued to the Plaintiff characterizes CPP and EI as part of the employee’s compensation package. Moreover, the case law recognizes that the value of the employer’s contribution to CPP and EI are included in the calculation of the employee’s compensation for reasonable notice purposes, see Orlando v. Essroc Canada Inc., [1995] O.J. No. 4056 and Rienzo v. Washington Mills Electro Minerals Corp., [2005] O.J. No. 5126 (CA).

[7] The Plaintiff submits that the period of reasonable notice on these facts, applying the governing principles from the case of Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC), [1960] O.W.N. 253 (H.C.) is ten months, with a credit to the Defendant for all severance payments provided to date, which is agreed to be $22,000 which is equal to 3.38 months’ notice.

[8] The Plaintiff argues that ten months’ notice is appropriate because of the Plaintiff’s particular skillset and the challenging job situation in the Ottawa area for the last several years. In particular, the Federal Public Service has been downsized thereby severely limiting reemployment opportunities with the region’s principal employer. At the same time, the downsizing has saturated the market with highly skilled people, many of whom do the same type of administrative government-related work that the Plaintiff does. It is also argued that the Plaintiff’s job experiences are in a variety of fields with the result that employers seeking a more focused background would be less likely to be interested in her.

[9] On my view of the evidence, I accept that the reemployment market in the Ottawa area has been challenging over the relevant time, for the reasons noted. Evidence of this can be deduced from the many employment opportunities that the Plaintiff has attempted to pursue without success, until recently. On the other hand, the Plaintiff’s diverse training and experience, being quite broad, is in my view not a negative factor in her reemployment efforts. The real problem has been the job market being saturated with qualified competitive job seekers.

[10] I find that the Plaintiff’s position was that of a middle level professional, with the title of “Senior Manager, Executive Networks”, with significant responsibilities, who was terminated after a relatively short period of employment (2.5 years), in a difficult job market.

[11] Both counsel cited a number of cases dealing with notice periods awarded to short term employees. All of these, while helpful, were readily distinguishable on the basis of one or more of the Bardal criteria.

[12] In the circumstances, I am of the opinion that the proper period of notice for the Plaintiff in this case is six months, less, of course, the past termination payments received.

[13] As noted, the Plaintiff’s annual compensation was $90,631. The termination payments disclosed in the evidence have amounted to $22,000. Six months’ notice would have required a termination payment in