ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-15-527451

DATE: 20151116

BETWEEN:

CHARLES DRYSDALE
Plaintiff

– and –

PANASONIC CANADA INC.
Defendant

David Ertl, for the Plaintiff

Joseph Cohen-Lyons, for the Defendant

HEARD: November 3, 2015

LEDERMAN J.

NATURE OF MOTION

[1] The plaintiff is a former employee of the defendant and brings this motion for summary judgment to fix the appropriate notice period in his action for wrongful dismissal. He seeks summary judgment equivalent to 22 months payment in lieu of notice.

[2] The defendant takes the position that:

(a) The motion is not appropriate for summary judgment in that the motion raises issues with respect to mitigation efforts that cannot be resolved adequately based on the evidence presently available;

(b) In the alternative, the notice period sought by the plaintiff is excessive and that an appropriate reasonable notice period would be in the range of 10-14 months;

(c) Further, the plaintiff was terminated from employment in an industry where alternate employment is readily available but the plaintiff failed to take reasonable steps to mitigate his loss and thus, the notice period should be reduced accordingly or the action dismissed in its entirety;

(d) Even if the matters in issue could be decided by way of summary judgment motion, there should only be a partial summary judgment awarded with respect to the damages owing to date of the motion and that the balance adjourned pending the conclusion of the notice period.

BACKGROUND FACTS

[3] The defendant leased its operations at its distribution warehouse facility in Mississauga, Ontario, to a third party provider, (Kinetsu World Express (Canada)), with Kinetsu to assume operations at the warehouse facility on April 1, 2015.

[4] By reason of the outsourcing of its operations, the defendant terminated several of its employees including the plaintiff. On February 26, 2015, the defendant advised the plaintiff that his position was being eliminated and accordingly, his employment would be terminated on March 31, 2015. From February 26, 2015 until March 31, 2015, the plaintiff continued to work for the defendant.

[5] At the time of his termination, the plaintiff was employed as a shipper, working day shifts at the warehouse. His duties included:

(a) Unloading and loading trucks using forklifts, pallet trucks, etc;

(b) Performing physical inventory counts;

(c) Internal transportation of received goods and supplies;

(d) Completing paper work and electronic transactions associated with the receipt and movement of products; and

(e) Performing general safety inspections of material, handling equipment consistent with certification training expectations.

[6] At the time of termination, the plaintiff’s annual compensation consisted of:

(a) Salary and overtime totaling approximately $62,000;

(b) Membership in the defendant’s pension plan. The defendant’s contribution to the plan in 2014 was $3,164;

(c) Member group benefits which included medical, dental, disability and life insurance.

[7] At the time of termination, the plaintiff was 58 years old and had worked for the defendant for almost 23 years.

[8] Upon termination of employment, the defendant provided the plaintiff with his minimum notice entitlements under the Employment Standards Act, 2000.

[9] The plaintiff was also invited to apply for a job with the incoming logistics company, Kinetsu, but it did not hire him.

APPROPRIATENESS OF SUMMARY JUDGMENT MOTION

[10] It is now common place to use summary judgment proceedings to determine wrongful dismissal matters where the principal issue is the reasonable notice period: Fraser v. Canerector Inc. 2015 ONSC 2138 at para. 2. In this case, there is no issue concerning cause and there is no dispute as to the key components of the case, mainly the employee’s length of service, age, position and compensation.

[11] The defendant takes the position that the motion raises issues with respect to mitigation efforts that cannot be resolved adequately based on the evidence presently available. I disagree. The burden to establish failure of mitigation rests with the employer and on this motion it was obliged to put its best foot forward. It submitted a list of job openings and said that at least 330 of them were comparable to his old job; and for which the plaintiff would have been an ideal candidate; and that had he applied for them, it was likely he would have obtained a comparable position. That evidence has been made available on this motion and the plaintiff has responded to it. The defendant was unable to demonstrate that this issue required a trial process for its determination. Accordingly, it is appropriate to have this matter decided summarily in accordance with the directions provided by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

NOTICE PERIOD

[12] Reasonable notice must be decided in reference to the particular facts of the case and having regard to the factors set out in Bardal v. Globe & Mail Ltd., 1960 294 (ON SC), [1960] 24 DLR (2d) 140 (HCJ), namely, the character of the employment in issue, the length of service of the employee, the age of the employee, and the availability of similar employment, having regard to the experience, training and qualifications of the employee.

[13] The plaintiff is 58 years old. Generally, a longer notice period will be justified for older, long term employees who may be at a competitive disadvantage in securing new employment because of their age (McKinney v. University of Guelph 1990 60 (SCC), [1990] 3 S.C.R. 229 at para. 92).

[14] The plaintiff’s length of service is approximately 23 years. An employee’s length of service is an important factor in the determination of reasonable notice. For one thing, it has been said that “a long term employee has a moral claim which has matured into a legal entitlement to a longer notice period.” (See Ansari v. British Columbia Hydro and Power Authority, 1986 1023 (BC SC), [1986] BCJ No. 3005 (BCSC) at para. 26). Moreover, having served one employer for such a lengthy period of time, a potential new employer may view that individual as rather set in his ways and not as adaptable to change. Whatever the reason, courts have considered long term service as a factor towards increasing the notice period.

[15] The character of the plaintiff’s employment is for the most part one of physical labour. He held a non- managerial position and was responsible along with 30 or 40 other material handlers in moving product in and out of and within the defendant’s warehouse. Of note, is the fact that his hourly wage was $28/hour which would appear to be considerably higher than the wage earned by other shippers in the industry. Even if the plaintiff could be considered a low level unskilled employee, it does not mean that he would necessarily have an easier time finding alternative employment than would a person in a managerial position. It has been held that the character of employment as being one of a rather low level is today a factor of declining relative importance: see DiTomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 at paras. 27 and 28.

[16] Further, it is doubtful that there are many warehouse jobs today that pay approximately $60,000 per year plus benefits and pension which was the plaintiff’s compensation.

[17] Having regard to all of the Bardal factors and in particular the plaintiff’s age, length of service, level of compensation, and taking into account jurisprudence where the circumstances were similar, I find that the appropriate notice period is 22 months.

EFFORTS AT MITIGATION

[18] The plaintiff has taken significant and meaningful steps to find comparable employment. He has completed career counselling, signed up for job placement with a government funded employment service, attended a job fair, regularly searched online for job postings and has applied for 31 jobs. Even prior to his final day of work at the defendant, he sought employment from Kinetsu but was rejected.

[19] The defendant submits that these efforts were not sufficient. It has proffered a list of available job postings and suggests that the plaintiff should have applied to them all; and because he didn’t he has failed to mitigate. Plaintiff’s counsel has conducted a close analysis of the job postings as listed by the defendant. Of the total 380 job postings submitted: 173 of them did not set out any salary details; 55 of them did not provide the actual job posting; 120 of them offered wages at $17/ hour or below. Accordingly, the total number of jobs for which salary is unknown or $17/ hour or below is 348.

[20] The defendant’s evidence concerning suitable available positions is insufficient to discharge the burden that it bears of demonstrating failure to mitigate on the part of the plaintiff.

[21] Further, the standard for mitigation is reasonableness, not perfection. The plaintiff’s obligation in this regard was not simply to find a job in the industry. He is not expected to pursue low paying jobs simply to find a job but to find a comparable position reasonably adapted to his abilities.

[22] The defendant offered the plaintiff no assistance in searching out these job postings and therefore it does not lie readily in the defendant’s mouth to criticize the plaintiff afterwards for not pursuing these specific job opportunities. As stated by Taylor J. in Maxwell v. United Rentals of Canada Inc., 2015 ONSC 2580 at para. 40 “… if an employer intends to argue the failure to mitigate on the part of the former employee, it would be well advised to present evidence of assistance that was offered to the terminated employee during his or her job search.” Here, the defendant raised the issue of available job postings after the fact and only in the course of this litigation. Prudence would have dictated that the employer make this information available to the employee in a timely way to assist him in his transition.

[23] In the circumstances, I have concluded that the defendant has not discharged its burden and in fact the plaintiff has taken ample steps to mitigate his loss.

TRUST APPROACH V. PARTIAL SUMMARY JUDGMENT

[24] The notice period has not completely run its course. The defendant submits that a mechanism to allow for the possibility of the plaintiff securing equivalent employment at some future time during the notice period or failing to continue to take appropriate mitigating steps should be put in place. The fairest way to proceed, it submits, is for the court to grant partial summary judgment up to the date of this motion and adjourn the balance of the motion until after the expiry of the notice period at which time the remaining amounts that are owed can be determined. That would provide a real ability to assess the reasonableness of the plaintiff’s conduct going forward during the balance of the notice period, and would alleviate the defendant’s concern that once the full damages are paid, the ability to get the matter back before the court would be practically non-existent.

[25] The plaintiff submits that the full damages should be paid but that a constructive trust be imposed on any mitigatory earnings made during the notice period and an accounting rendered for this period.

[26] In some cases, partial summary judgment was given were, as here, the notice period was found to be substantial (for example, Markoulakis v. SNC-Lavalin Inc. 2015 ONSC 1081; Russo v. Kerr Bros. Ltd. 2010 ONSC 6053). In other cases, the trust approach was taken in circumstances where the employee was relatively young with many years of future employment ahead and eager to get on with his or her career (for example, Paquette v. Terago Networks Inc. 2015 ONSC 4189; Zoldowski v. Strongco Corporation 2015 ONSC 5485).

[27] Nevertheless, I prefer the trust and accounting approach but structured along the following lines:

(a) The defendant will pay to the plaintiff all monies owing for the respective notice period up to the date of the motion;

(b) The balance of the monies owing for the notice period will be paid to the plaintiff’s counsel in trust. The plaintiff’s counsel will invest the monies into a separate trust account;

(c) The monies will be paid out to the plaintiff in equal monthly instalments in arrears on the 15th day of the following month, subject to any income earned by the plaintiff during each month;

(d) On the last day of each month, the plaintiff’s counsel will be required to deliver to defendant’s counsel a statement indicating whether the Plaintiff has earned any income during that month and if so, how much; and

(e) If income is earned, the amount of the income will be deducted from the amounts held in trust and returned to defendant.

CONCLUSION

[28] The plaintiff is therefore entitled to a notice period of 22 months. The parties are to calculate the total amount based on that period of time. If they are unable to agree, they may to make further written submissions to me on this issue.

[29] It is hoped that the parties will be able to agree on the costs of the summary judgment motion and action. If unable to do so, they may make written submissions within 30 days.

Lederman J.

Date: November 16, 2015

COURT FILE NO.: CV-15-527451

DATE: 20151116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHARLES DRYSDALE
Plaintiff

– and –

PANASONIC CANADA INC.
Defendant

REASONS FOR JUDGMENT

Lederman J.

Released: November 16, 2015