ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-00512077
DATE: 2015-09-04
BETWEEN:
HELEN MLOTEK
Plaintiff
– and –
YORK-MED SYSTEMS INC.
Defendant
Philip Joseph Wolfenden, for the Plaintiff
Michael Simaan, for the Defendant
HEARD: September 4, 2015
K.P. WRIGHT, J.
reasons for judgment
Introduction
[1] The plaintiff brings this motion for summary judgment against the defendant. The plaintiff is seeking damages in the amount of $75,000.00 for wrongful dismissal/breach of contract and $20,000.00 in damages for discrimination in employment due to age.
[2] After 16 years of working for the defendants, the plaintiff was terminated from her position as training scheduling coordinator. The plaintiff was 72 years old at the time of termination and claims that her age was the reason she was let go.
[3] The defendant adamantly denies that claim and says the decision to terminate the plaintiff and others was based on a financial decline due to a work shortage that had been taking place over the course of 5 years.
[4] The plaintiff had over the course of her employment signed two contracts. One in 1998 and one in 2011. Those contracts have been reproduced in the plaintiff’s motion record at Tab 2.
[5] The background and facts leading up to the termination are set out in the plaintiff’s factum at 1 through 15. I accept them and do not intend to repeat them now. I will further develop the facts when necessary in my analysis.
The Law
[6] The law on summary judgment and enhanced powers of the Court in that regard are set out in the plaintiff’s factum at paragraphs 17 through 22 and in the defendant’s factum at paragraphs 29 through 32. I accept the law as set out in the factums and do not intend to repeat it now.
[7] I find that this matter is properly before me as a summary judgment motion.
[8] I find that there is no genuine issue for trial and that the matter can and should be resolved using the enhanced summary judgment powers available through Hyrinack and pursuant to Rule 20 of the Rules of Civil Procedure.
Issues and Analysis
[9] I have broken down the issues into two main categories;
Discrimination based on age; and
The contracts.
[10] I will deal with them in that order.
Issue: Discrimination Based on Age
[11] I accept the law and three-prong test for a determination of discrimination as set out in the plaintiff’s factum at para 73, I do not intend to repeat it now.
[12] The plaintiff was 72 years of age when she was terminated. This factor alone does tend to give one pause, however, I am not of the view that it makes out a prima facie case for discrimination based on age.
[13] I am mindful the plaintiff does not rely on this factor alone. She submits that her age combined with the fact that she was qualified for the position and, perhaps most importantly, that the position was filled by a younger, but no better qualified individual, establishes a prima facie case and shifts the onus to the defendant.
[14] The evidence of this comes from the plaintiff’s cross examination, where she gave several inconsistent responses and finally says she heard it from someone who still works there but did not disclose the name of that person.
[15] I find, based on the evidence before me, that the position was not filled by a younger individual.
[16] I accept the defendant’s evidence that the position has to date not been filled, most because the position itself became redundant due to the work shortage. He did acknowledge that other employees were doing some of the general administrative tasks that were once assigned to the plaintiff. The other employees while younger (50 plus) had years of seniority over the plaintiff.
[17] I accept the defendant’s evidence that the only reason the plaintiff was terminated was because of financial decline due to a work shortage. There is ample evidence that the defendant was experiencing serious work shortages 5 years before the plaintiff was laid off and then terminated. These work shortages led to a reduction in the hours worked by all employees not just the plaintiff. At one point the defendant implemented some sort of job- share program to assist the employees during this work slowdown. Unfortunately, things got worse instead of better and eventually this lead to the laying off of several employees not just the plaintiff.
[18] Plaintiff’s counsel argues that there is no evidence of this company experiencing a financial decline. He argues that the defendant has failed to produce any financial documents to support its position despite being requested to do so. He says I should draw an adverse inference against the defendant because of this.
[19] I disagree.
[20] While it is true that I do not have the actual financial documents, I do have ample other evidence, which I do accept that indicates a financial decline. Even the plaintiff agreed in cross examination that the company had experienced a significant work shortage.
[21] The defendants submit that the documents sought would disclose confidential information that they would not want to be part of a court record. The plaintiff argued they could have asked for a sealing order. I agree they could have asked for a sealing order, but there is no guarantee it would have been granted. Moreover, I am not prepared to speculate or weigh in on this issue at this stage. Alternatively, the plaintiffs could have sought a court order to obtain the documents, they choose not to.
[22] Under the circumstances, I am not persuaded to draw an adverse inference against the defendant on this issue.
[23] I am fully satisfied that the termination of the plaintiff had nothing to do with her age. It was my impression that the defendant valued older employees. They did after all hire the plaintiff in her late fifties and many if not most of their employees could be described as older.
[24] I find that the evidence on this motion clearly demonstrates that the defendant valued and respected his older employees. One good example of this is when he formally requested that the health benefit age restriction be extended to age 75 and made this new benefit available to all of the staff.
[25] Moreover, even in the face of this lawsuit, the defendant still describes the plaintiff as a valued employee, which speaks to his character and credibility.
[26] The reality is the plaintiff’s position as a training scheduler became redundant years before she was laid off and terminated. I accept the defendant’s evidence that despite the work slowdown that directly impacted the plaintiff’s role, he was able to keep her employed for five years prior to termination by assigning her general administrative work.
[27] For these reasons, I am fully satisfied that Ms. Mlotek’s termination was not in any way remotely associated to her age.
Issue: The Contracts
[28] Both parties take the position that the 2011 contract is invalid due to a lack of consideration at the time is was entered into.
[29] The plaintiff takes the position that the 1998 contract is also invalid and unenforceable for a myriad of reasons.
[30] Firstly, they argue that the 2011 contract had the effect of rescinding the 1998 contract. They argue that the rescission comment found in the 2011 contract survives despite the rest of the contract being found invalid.
[31] I disagree.
[32] This attempt to resurrect an isolated statement out of an invalid agreement, in my view, feels very much like cherry picking and is painfully self-serving. I don’t dispute that in the rare case there may be some support, in law, for such a finding, however, this case in not one of them.
[33] The plaintiff takes the alternative or further position that the termination clause in the 1998 contract is ambiguous and as such should be struck. Plaintiff’s counsel argues that the confusion and ambiguity in large measure is due to the use of the word entitlement in the singular rather than the plural form.
[34] I disagree.
[35] The word entitlement cannot be read in isolation. When read in the context of the clause as whole it is obvious that the word entitlement was meant to be interpreted in the plural sense. I find the wording to be simple and straightforward, with no hint of ambiguity.
[36] The plaintiff also takes the position that the 1998 contract is invalid and unenforceable due to a lack of consideration.
[37] The plaintiff argues that when an employee signs an agreement during employment which modifies the original agreement by including a termination clause, it will be deemed invalid absent the provision of additional consideration.
[38] Be that as it may, this argument has no relevance to the plaintiff’s case.
[39] In 1998 there was only ever one contract presented to and signed by the plaintiff. There were no changes to the contract until the new one was presented in 2011. There is no evidence before me of an oral agreement that preceded the written contract in 1998. Even if there was an oral agreement, there is no evidence from the plaintiff that there was something new and different from the written contract she signed.
[40] The plaintiff also argues that it wasn’t the intention of either party to rely upon the 1998 contract and on that basis alone is invalid and unenforceable.
[41] I disagree, at least in part.
[42] It is true that both parties did not, until after the termination, realize that there were any deficiencies in the 2011 contract.
[43] It was however, the intention and belief of both parties, that Ms. Mloteck’s employment, for the full 16 years, was to be governed by a contract.
[44] There is also no dispute that regardless of which contract was in play at any given time, Ms. Mlotek’s daily tasks/job did not change in any way.
[45] Further, there is no evidence before me that Ms. Mlotek had any complaints or misunderstandings about her employment or the contract that governed her.
[46] I find that the termination clause, that is in issue, is substantively the same in both contracts.
[47] For these reasons, I find that 1998 contract was valid on the date of termination and that defendant was bound to comply with the terms of it.
Conclusion
[48] After a thorough review of the materials presented to me, the case law and the submissions of counsel, the plaintiff’s motion for summary judgment is dismissed.
[49] Accordingly, I find that the 1998 contract was in full force and effect at the time of the plaintiff’s termination and I find that she is entitled to 23 weeks’ notice pursuant to the contract.
Costs
[50] The defendant is the successful party and is thereby entitled to costs. Taking into consideration the factors as set out in Rule 57, and the unique factors that attach to this case, I find costs in the amount of $15,000.00 inclusive to be both fair and reasonable.
K.P. Wright, J.
Released: September 4, 2015
COURT FILE NO.: CV-14-00512077
DATE: 20150904
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HELEN MLOTEK
Plaintiff
– and –
YORK-MED SYSTEMS INC.
Defendant
REASONS FOR JUDGMENT
K.P. WRIGHT, J.
Released: September 4, 2015