ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-14-512487
DATE: 20151008
BETWEEN:
Lynne Aylesworth
Plaintiff/Moving Party
– and –
The Law Office of Harvey Storm
Defendant/Responding Party
L. Preyde, for the Plaintiff/Moving Party
K. Armagon, for the Defendant/Responding Party
HEARD: October 7, 2015
Reasons for Decision
Sean F. Dunphy J.
[1] The sole issue on this hearing was whether the plaintiff acted reasonably in declining to accept an offer of employment extended to her shortly before her working notice expired. At the conclusion of the motion I gave judgment in favour of the plaintiff and indicated reasons would follow. These are those reasons.
[2] As I indicated in my handwritten endorsement, this case was somewhat unusual in that the defendant employer clearly attempted to go to bat for his long term employee as he was making his own transition to retirement. There is nothing in the employer’s behaviour which has been remotely open to criticism or complaint – his references were golden and even his affidavit in response to the motion was complimentary of the plaintiff’s skill and loyalty. There was no real issue as to the amount of reasonable notice even if the working notice was short of that mark - the sole issue was mitigation.
Overview of Facts
[3] At the time of termination of employment, the plaintiff was a long term (over fifteen years) employee of the defendant and was 54 years old. She was earning approximately $40,000.
[4] The defendant was a sole practitioner with a practice that was concentrated on real estate. He was looking to plan for his retirement. He negotiated a merger of his practice with that of Real Estate Lawyers.ca LLP (“REL”), a real estate law firm that operates out of multiple locations.
[5] Mr. Storm gave working notice of termination of employment to his long-time employee on April 25, 2014 effective September 1, 2014.
[6] Mr. Storm had two long term employees. He told them he would try to secure positions for both in the new organization but there may only be room for one. Ms. Aylesworth was the junior of the two and expected she would not likely receive an offer. Initially, she did not.
[7] As matters turned out, Mr. Storm was able to secure an offer for Ms. Aylesworth as well. She got an offer from REL on July 8, 2014. While the offer on its face appeared similar if not identical to her existing position with Mr. Storm there were important differences. Among the differences was the fact that she was being asked to execute a detailed written employment agreement which she had not done in her existing job. She asked for some time to review the offer and seek legal advice.
[8] Two days after extending the offer, REL followed up with an email that consisted of the following message: “????”. They wanted to know the plaintiff’s position on the offer. She had not yet had an opportunity to get legal advice. She was still in the period of working notice and her lawyer was on summer vacation.
[9] Her lawyer came back from vacation on July 17th. On the 21st, the plaintiff made a counter offer and raised a number of questions about the offer upon which clarification was sought. In her view, the offer made to her entailed some increased responsibilities and had a number of difficult conditions, including as to vacation entitlement. She wanted an increase in pay of some $9,000 and some assurances regarding the ability to take some vacation time in summer as she had always done. REL considered that she had rejected the offer and advised her one hour later that they would be looking at other candidates. There were no further discussions.
[10] The plaintiff’s employment ended on August 31, 2014. Her job search ended up being a long one. Happily she found employment in July 2015 at an increased salary level (approximately $46,000). But for the mitigation issue discussed below, the parties were able to work out her entitlement to compensation in lieu of notice. This level of pragmatic co-operation between lawyers even where divided by an honest difference of opinion is to be strongly commended as it reduces cost and stress for all involved.
Issues
[11] The following issues are raised by this application:
a. Whether this is an appropriate case for summary judgment; and
b. Whether the plaintiff acted reasonably in declining to accept the REL offer of employment on the terms offered?
Analysis and Discussion
(a) Is summary judgment appropriate?
[12] The defendant submits that the question of reasonable mitigation raises a genuine issue requiring a trial. I did not ask to hear from the plaintiff in response to this issue.
[13] The “proportionality” principle in Rule 1.04(1.1) of the Rules of Civil Procedure as well as the amendments which added the “toolbox” of Rule 20.04(2.1) ought to be well-understood by all practitioners since the Supreme Court of Canada issued its ruling in Hryniak v Mauldin, 2014 SCC 7.
[14] The proportionality principle is applicable to all determinations to be made by the court, including determining whether there exists a genuine issue requiring a trial under Rule 20.04(1)(a) of the Rules of Civil Procedure. Even where such an issue might otherwise have been found to exist, the court must undergo a second level of inquiry to determine whether any issue requiring a trial can appropriately be resolved without a trial employing the tools in Rule 20.04(2.1) of the Rules of Civil Procedure.
[15] Our Court of Appeal has found that ordinary wrongful dismissal cases are especially well-suited to using the summary judgment procedure: Arnone v. Best Theratronics, 2015 ONCA 63. While cause for dismissal is occasionally a factor in such cases, the length of notice and reasonableness of mitigation are most often the only issues for resolution. These issues seldom involve genuine factual disputes of the sort that only a trial can unravel. The amounts at issue when compared to the costs of litigation cry out for the application of the proportionality principle always providing that a fair and reasonable determination of the issues can nevertheless be accomplished. Such cases ought not to clog the court system nor leave the protagonists locked in lengthy litigation by attrition watching costs soar as high as the amounts at issue. If a five day trial can reasonably be avoided in favour of a two day motion, the system and the parties are all winners.
[16] The central issue in this case is the reasonableness of the plaintiff’s decision not to accept the REL offer as made. Having regard to the proportionality principle, I should have had little difficulty in concluding that there is no genuine issue requiring a trial on these largely undisputed facts. With the enhanced fact-finding tools of Rule 20.04(2.1) to use as needed, I find that there is no question that the issues can be resolved without a trial and that, indeed, requiring a trial on so narrow an issue involving such a modest sum of money would be a miscarriage of justice.
(b) Was the plaintiff reasonable in declining to accept the REL offer?
[17] The plaintiff suggested that the she was placed under pressure by the REL offer to forego obtaining legal advice. Without placing undue weight upon this argument, I do agree with her. REL followed up on its offer with the quiet pressure of the “????” email only two days after extending it, and knowing she was seeking legal advice. This could hardly do less than create an atmosphere of some unmistakable pressure upon the plaintiff in my view. In the final analysis, the plaintiff was given ample opportunity to seek legal advice on the offer, even if the pressure that she was placed under to forego that right or find other counsel created a negative atmosphere that was decidedly unhelpful.
[18] It is, I think, important to place the issue of mitigation in its proper context. The employer terminating an employment contract of more than 15 years duration on only four months’ notice has given unreasonably short notice. That is a breach of contract.
[19] When the employer pleads in response that the employee has failed to mitigate, the burden of proof is upon the employer to discharge. In Yiu v. Canada Kitchens Ltd., 2009 9412 (ONSC), D.M. Brown J. summarized the issue neatly (at para 16) as follows:
“[16] The onus an employer bears to demonstrate that the employee failed to mitigate is “by no means a light one…where a party already in breach of contract demands positive action from one who is often innocent of blame.” Accordingly, an employer must establish that the employee failed to attempt to take reasonable steps and that had his job search been active, he would have been expected to have secured not just a position, but a comparable position reasonably adapted to his abilities : Link v. Venture Steel Inc., 2008 63189 (ON SC), 2008 63189 (ON S.C.), paras. 45 and 46. An employer must show that the plaintiff’s conduct was unreasonable, not in one respect, but in all respects: Furuheim v. Bechtel Canada Ltd. (1990), 30 C.C.E.L. 146 (Ont. C.A.), para. 3.”
[20] The employee and the employer interests are normally aligned on the issue of mitigation in that the employee has no greater interest in being out of the work force for a long period of time and running the risk of being permanently side-lined from it than the employer has in giving excess notice. However, it is the employee’s career at stake and as long as prudence does not venture into excess “choosiness”, I would afford a reasonable degree of latitude to an employee considering her options and avoid the temptation of resorting to hindsight. Common sense must be applied both by the plaintiff in seeking or assessing an opportunity and by the court in judging the reasonableness of mitigation efforts after the fact. The employee must be realistic in her approach while the court must avoid the temptation of relying on 20:20 hindsight.
[21] Turning to the offer from REL which the plaintiff did not accept, I find that the employer has failed to discharge his onus to show her actions to have been unreasonable. To the contrary, I find that her actions were both understandable and reasonable.
[22] While ultimately given some time to obtain legal advice, the REL offer she was given was effectively “take it or leave it”. She made a counter offer and asked a number of reasonable and important questions about the offer. Instead of attempting any form of negotiation, REL promptly notified that they would be looking elsewhere. Of course, REL was not obliged to negotiate with her – they need only sign or undertake contracts that they are comfortable with. I am not sitting in judgment on REL; I am sitting in judgment on the reasonableness of the plaintiff’s actions. In my view, it was not unreasonable for the plaintiff to have raised questions and sought to negotiate salary even if, in this case, that resulted in the offer ultimately being withdrawn. The pressure placed upon her by REL had made her understandably wary. The offer might not have been withdrawn immediately; REL might have allayed some of her fears and smoothed over problems or offered reasonable explanations to her satisfaction on others. Her actions must be viewed through the lens of foresight and not hindsight.
[23] She did not refuse the offer; she merely refused to accept it without some discussion after consulting with her lawyer. While the defendant suggests the plaintiff “gambled” and lost by not accepting the offer as is, I disagree with the characterization. It is, I suppose, always a “gamble” to raise a question or to negotiate a point in any process if there is an option to simply sign the piece of paper offered. That is not the standard of mitigation our law imposes. Given the legitimate questions she had and her legitimate apprehension that the new position may have ended up requiring her to work in conditions significantly worse than those she formerly enjoyed, it was reasonable to “gamble” by raising those questions.
[24] The REL offer the plaintiff hesitated to accept unconditionally represented a significantly more tenuous form of employment on terms significantly less favourable than she previously enjoyed. Although her salary would have been preserved, the offer represented significant change – most of it negative – to her conditions of employment:
• Her long-standing custom of taking a summer vacation at her cottage would have been sacrificed as the new employer warned that summer vacations would likely not be approved;
• Sick days were treated as vacation days;
• She was to go from being a full-time employee on indefinite term to an employee on probation;
• Her severance entitlements were to be fixed at the statutory minimum;
• While she would initially be assigned to work at the same office, her contract could be assigned to another office without her consent;
• The office was to be transformed into a higher volume practice that might entail additional stress that gave her cause to pause; and
• She was to be given what appeared to her (reasonably, in my view) to be additional responsibilities without any additional compensation.
The last requires explanation. The plaintiff had formerly filled in at the reception desk only occasionally whereas her new job position included that task as a standard feature of her job.
[25] Viewed individually, none of these issues was necessarily a “show stopper”. The plaintiff candidly admitted that had REL engaged in some dialogue and answered some of her questions satisfactorily, they might well have overcome some or all of her reservations. This did not occur, but she could not have known in advance that REL would decline to discuss the matter. I cannot find her to have raised these issues unreasonably and would decline to focus unduly on the request for a raise in pay which was but one of several issues raised by her July 21 email to REL. Conduct must be unreasonable not in one respect but in all respects.
[26] The defendant argues that it is unreasonable not to accept an offer at the same salary with the same or similar conditions and absent a toxic or otherwise negative work atmosphere, citing the case of Evans v Teamsters, Local 31, 2008 SCC 20. While I agree that there was no question here of toxic work environment and the salary was the same, that is not the entire test. The issue here was whether the plaintiff had enough before her reasonably to conclude that the working conditions she was being offered were the same or substantially similar. Each of the noted terms of the proposed new employment contract represented a significant and negative variation to the terms governing the employment contract that was being terminated. As Bastarache J. held in Evans, (supra, at para. 30) the test is an objective one, but “it is extremely important that the non-tangible elements of the situation – including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements be included in the evaluation” (emphasis added).
[27] In the present case, the conditions of employment offered were sufficiently different, and in a negative way, to justify the plaintiff having raised questions for clarification and yes, having attempted to negotiate a raise to compensate for some of them.
Disposition
[28] Having found against the defendant’s only substantive defence – being that of the reasonableness of the plaintiff’s mitigation in failing to accept the REL offer – I asked the parties if they would be able to work out the damages and costs issues on consent. To their credit as counsel, they agreed that they could and took advantage of a short recess to do so. While the defendant has obviously not consented to my adverse finding on the mitigation point, it has agreed with the plaintiff that damages of $32,500 (less statutory deductions) and costs of $13,000 is reasonable having regard to my finding. I so endorsed the record. I wish to be clear here that while the amounts were on consent, the liability finding was contested and, should the defendant be so advised, it is of course entitled to seek a review of my findings.
[29] Both counsel did a commendable job of narrowing the issues and professionally presenting their respective positions resulting in a well-focused hearing.
Sean F. Dunphy J.
Date: October 8, 2015
COURT FILE NO.: CV-14-512487
DATE: 20151008
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lynne Aylesworth
Plaintiff/Moving Party
– and –
The Law Office of Harvey Storm
Defendant/Responding Party
REASONS FOR JUDGMENT
Sean F. Dunphy, J.
Released: October 8, 2015