Paes v. Cascades Canada ULC, 2015 ONSC 7356

CITATION: Paes v. Cascades Canada ULC, 2015 ONSC 7356 COURT FILE NO.: CV-15-527364 DATE: 20151125

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AGNELLO PAES Plaintiff

– and –

CASCADES CANADA ULC c.o.b. as CASCADES TISSUE GROUP TORONTO Defendant

COUNSEL: Bruce Baron & William Levitt, for the Plaintiff Geoff Breen, for the Defendant

HEARD: November 17, 2015

M. D. FAIETA J.

REASONS FOR DECISION

INTRODUCTION

[1] The Plaintiff, at 63 years of age, was terminated from his employment, without cause, by the Defendant on November 24, 2014. His termination was effective April 4, 2015. The Plaintiff worked as a machinist for the Defendant, and its predecessor, for 26 years. The Plaintiff has been unable to find another job as a machinist.

[2] The Plaintiff claims that four months of working notice is inadequate and he brings this motion for summary judgment seeking reasonable notice of termination in the amount of 24 months. The Defendant alleges that the Plaintiff failed to mitigate his losses by not taking advantage of outplacement services that it offered. The Defendant also submits that the Plaintiff has not found another job as a machinist because he has retired.

ANALYSIS

[3] This motion for summary judgment is brought by the Plaintiff pursuant to Rule 20 of the Rules of Civil Procedure. The following principles[^1] are applicable:

• a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;
• the rules for summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims;
• the onus is on the moving party to show that there is no genuine issue requiring a trial;
• the summary judgment process must: (a) allow the judge to make the necessary findings of fact, (b) allow the judge to apply the law to the facts, and (c) be a proportionate, more expeditious and less expensive means to achieve a just result.
• each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried;
• a Court may exercise any of the following powers for the purpose of determining whether there is a genuine issue requiring a trial, unless it is in the interest of justice for such powers to be exercised only at a trial:
  1. Weigh the evidence.
  2. Evaluate the credibility of a deponent.
  3. Draw any reasonable inference from the evidence.
  4. Order that oral evidence be presented by one or more parties for the purposes of exercising the above powers.
• If the Court cannot grant judgment on the motion, the Court should: (a) decide those issues that can be decided in accordance with the principles described above; (b) Identify the additional steps that will be required to complete the record to enable the Court to decide any remaining issues; (c) In the absence of compelling reasons to the contrary, the Court should seize itself of the further steps required to bring the matter to a conclusion.

[4] The following evidence was filed on this motion:

• Affidavits of Agnello Paes, sworn August 25, 2015, October 21, 2015 and November 10, 2015;
• Affidavit of Josee Levesque, sworn October 13, 2015;
• Affidavit of Pascal Lebel, sworn October 13, 2015;
• Affidavit of Caitlin Russell, sworn November 6, 2015;
• Affidavit of Irene Newton, sworn November 10, 2015.

[5] The Defendant submitted that this motion should be dismissed because the Plaintiff had not made himself available for cross-examination on his affidavit. That issue was addressed when the Plaintiff, who coincidentally attended the hearing of this motion, was called to testify and be cross-examined by the Defendant following a recess in the hearing of this motion.

[6] This motion raises the following issues:

• Did the Plaintiff receive reasonable notice of his termination?
• Did the Plaintiff act reasonably to mitigate his losses?

Issue # 1 – Did the Plaintiff receive reasonable notice of his termination?

[7] The Plaintiff was hired by Atlantic Packaging Inc. on October 3, 1998, as a machinist at that company’s plant in Toronto. In 2009, the Defendant acquired the Toronto plant from Atlantic Packaging. Paper products are made at the plant. The Plaintiff continued his employment as a machinist with the Defendant at the Toronto plant. His primary responsibility was for manufacturing machine parts and otherwise maintaining machines. No one reported to the Plaintiff nor did he exercise any managerial or supervisory duties. In the fall of 2014, the Defendant terminated the Plaintiff’s employment as a result of a restructuring within the plant.

[8] As a result, on November 24, 2014, the Plaintiff was provided with notice that his employment with the Defendant had been terminated without cause. The letter from the Defendant’s Plant Manager stated that the Plaintiff’s last day of employment would be April 4, 2015 and that, following his last day of employment, he would receive accrued vacation pay and 26 weeks of severance pay as required by the Employment Standards Act, 2000. The letter also stated that the services of a consultant would be made available in order to help the Plaintiff find employment.

[9] The Defendant provided the following letter, dated April 13, 2015, to the Plaintiff following his termination:

This is to confirm that Mr. Paes worked for Cascades Tissue Group – Toronto from October 3, 1988 to April 2, 2015. Mr. Paes’ employment was terminated after a major restructure of our Toronto site operations.

Mr. Paes held a full time job with the company as a Machinist, was working 40 hours per week, and had a yearly salary of $62,836.80. His main responsibility was to manufacture machine parts, maintain machines, manufacture spare parts for stock room for our parts department, while following all processes and standards required. …

[10] The applicable legal principles for determining reasonable notice were described by Justice Perell in Paquette v. TeraGo Networks Inc.[^2] as follows:

• An employee who is dismissed without reasonable advance notice of termination is entitled to damages for breach of contract based on the employment income that the employee would have earned during the reasonable notice period, less any amounts received in mitigation of the loss;
• The purpose of requiring reasonable notice is to give the dismissed employee an opportunity to find other employment;
• In determining the length of notice, a court must apply the following considerations, on a case by case basis, in order to determine what constitutes reasonable notice of termination:
  • The age of the employee at termination;
  • The length of employment;
  • The character of employment;
  • The availability of similar employment having regard to the experience, training and qualifications of the employee;
• The reasonableness of the notice turns on the facts of each case. There is no “right” figure for reasonable notice. Most cases yield a range of reasonable figures;
• A longer notice period will usually be justified for older long-term employees;
• Generally, the longer the duration of employment, the longer the reasonable notice period;
• A longer notice period is provided for senior management or highly skilled and specialized employees and a shorter period is provided for lower rank or unspecialized employees;
• Economic factors such as a downturn in the economy or in a particular industry or sector of the economy may indicate that an employee may have difficulty finding another position and may justify a longer notice period.

[11] As noted, the Plaintiff was 63 years old when his employment was terminated. He had been employed for 26 years by the Defendant as a machinist. He did not exercise any managerial or supervisory functions.

[12] The Defendant relies on Nastasi, Hutchison and Russo. The Plainitff relies on the other cases described below, particularly Di Tomaso, Hussain and Markoulakis.

Case	Age	Years of Services	Character of Employment	Reasonable Notice
Markoulakis v. SNC-Lavalin, 2015 ONSC 1081, [2015] O.J. No. 1924	65	41	Senior civil engineer	27
Kotecha v. Affinia Canada ULC, 2013 ONSC 4817, [2013] O.J. No. 3360, varied 2014 ONCA 411, [2014] O.J. No. 2390	70	20	Machine operator	18
Capson v. Amcor Packaging Canada Inc., 2013 NBQB 212, [2013] N.B.J. No. 172	Unknown	23	Machine operator	20
Hussain v. Suzuki Canada Ltd., [2011] O.J. No. 6355 (S.C.J.)	65	36	Assistant warehouse supervisor	26
Brito v. Canac Kitchens 2011 ONSC 1011, [2011] O.J. No. 1117, varied 2012 ONCA 61, [2012] O.J. No. 376	55	24	Cabinet maker	22
Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, [2011] O.J. No. 2900	60	33	Mechanic and press maintainer	22
Hutchison v. West Perth Power Inc., [2007] O.J. No. 4338 (Ontario Superior Court of Justice - Small Claims Court)	60	25	Accountant/ Bookkeeper	16
Brazeau v. International Brotherhood of Electrical Workers., 2004 BCSC 251, [2004] B.C.J. No. 343; aff’d 2004 BCCA 645, [2004] B.C.J. No. 2624	69	25	Electrical worker	24
Radwan v. Arteif Furniture Manufacturing Inc., 2002 ABQB 742, [2002] A.J. No. 1031	64	25	Punchpress operator	20
Russo v. Lawrence Park Medical Centre Ltd., [2004] O.J. No. 5832 (S.C.J.)[^3]	67	25	Parking attendant	12
Tanton v Crane Canada Inc. (2000), 2000 ABQB 837, 278 A.R. 137 (Q.B.)	Unknown	25	Warehouse person	24
Nastasi v. Eaton Yale Ltd., [1996] O.J. No. 2923 (Gen. Div.)	60	22	Machinist with supervisory function	16
Marano v. Unitel Communications Inc., [1995] O.J. No. 2570 (Gen. Div.)	47	26	Unknown	22

[13] The Plaintiff submits that this Court’s decision in Nastasi should be discounted on the basis that its determination of reasonable notice was made at a time when a cap of 12 months’ notice for clerical, non-management employees applied pursuant to the Ontario Court of Appeal’s decision in Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505 (C.A.).[^4] I agree. While the Court in Nastasi found that this cap did not apply to the Defendant who had been employed as a mechanic and machinist, it nonetheless referred to Cronk as a consideration in arriving at its decision.

[14] The Plaintiff asserts that the availability of similar employment is likely constrained given that Canada is in an economic recession and that Ontario’s manufacturing sector has shrunk significantly over the last few decades. The Defendant did not dispute these assertions.

[15] The Defendant’s position is that 16 months is the upper limit of the reasonable notice. The Plaintiff’s position is that he is entitled to 24 months reasonable notice.

[16] Having regard to the four factors described above and having reviewed the various authorities submitted by the parties, it is my view that a period of reasonable notice in these circumstances is 21 months.

Issue #2: Did the Plaintiff act reasonably to mitigate his losses?

[17] The applicable legal principles in relation to an employee’s duty to mitigate his losses were also outlined in Paquette:[^5]

• An employee has a duty to mitigate his losses and is not entitled to recover for losses that were avoidable;
• Similarly, an employee must take into account benefits from actually mitigating his loss;
• The onus is on the defendant to establish that the employee failed to take reasonable steps to find a comparable position and that the employee would likely have found a comparable position reasonably adapted to his abilities; [Emphasis added.]
• In assessing an employee’s efforts at mitigation, the courts are tolerant, and the employee need only be reasonable, not perfect;
• The Court may grant judgment before the expiration of the reasonable notice period but the employee will be subject to a duty to mitigate for the duration of the reasonable notice period using one of three approaches:
  • The Contingency Approach – the employee’s damages are discounted by a contingency for re-employment during the balance of the notice period;
  • The Trust and Accounting Approach – the employee is granted judgment but a trust in favour of the employer is impressed on the judgment funds for the balance of the notice period requiring the employee to account for any mitigatory earnings;
  • The Partial Summary Judgment Approach – the employee is granted a partial summary judgment and the parties return to court during and or at the end of the notice period for further payments subject to the duty to mitigate.

[18] The Defendant submitted the Plaintiff has not mitigated his loss because he has retired. It relies upon the following:

• The Plaintiff did not utilize the outplacement coaching services that the Defendant made available to him;
• Pascale Lebel, Human Resources Manager for the Defendant, states that he “did not wish to schedule [an outplacement session] as he planned to retire following the termination of his employment with the Defendant”;
• Irene Newton, Human Resouces Technician for the Defendant, states that in late 2014 the Plaintiff told her that he was “OK” with his employment being terminated and that he “was going to retire and do work around the house”.
• The Defendant did not make his first job application until June 18, 2015.
• The Defendant has not made a meaningful effort to find comparable employment;

[19] In his examination at the hearing of this motion, the Plaintiff addressed the above assertions as follows:

• He acknowledged that he did not use the outplacement services. He is computer illiterate. However, he stated that his spouse, who is currently employed, helped him prepare a resume and has helped him to find and respond to job advertisements for machinists (both online and looking in Toronto newspapers);
• The Plaintiff categorically denies telling either Ms. Lebel or Ms. Newton that he would retire. The Plaintiff testified that others saw that he looked depressed after receiving his notice of termination. He testified that Human Resources staff for the Defendant would regularly ask him if he was “okay”;
• The Plaintiff acknowledges that he did not look for work while he was employed by the Defendant. He testified that he would have had to sign out. The Plaintiff also testified that he did not look for other work during April 2015 as he decided to focus on his daughter’s wedding that occurred later than month. The Plaintiff testified that he cannot afford to retire and that his wife encouraged him in April 2015 to overcome his disappointment from losing his job and to move on with his life and find a new job. Following that conversation, in April 2015 the Plaintiff organized his employment records and, with his wife’s help, made a resume;
• The Plaintiff testified that he has submitted about 20 applications for comparable employment since May 2015 and has had three or four unsuccessful telephone interviews.

[20] I find that the Plaintiff made reasonable efforts to find comparable employment. The Plaintiff has reasonably explained why he did not immediately look for work, especially in light of the shock following the termination of his long-term employment.[^6] In any event, there is no evidence that the Plaintiff would likely have found comparable employment during April 2015 or any time since he received the notice of termination in November 2014. Accordingly, I dismiss the submission that the Plaintiff’s claim should be reduced because he failed to mitigate his loss.

[21] Given that this motion for summary judgment was heard before the end of the period of reasonable notice, there is a continuing duty on the Plaintiff to mitigate his damages by seeking comparable employment. The Defendant submits that this Court’s decision should take this into account through one of the three methods described earlier.

[22] It is very unlikely that the Plaintiff will find comparable employment. In the circumstances, the most practical and efficient way to address this future duty to mitigate is to apply a contingency as this Court did in Hussain rather than to use one of the other two approaches. It is my view that the Plaintiff has about a 1% chance of finding comparable employment prior to the end of the reasonable notice period. Accordingly, I reduce the Plaintiff’s reasonable notice period from 21 months to 20.8 months.

CONCLUSIONS

[23] There is no genuine issue requiring a trial. This motion for summary judgment is granted. The Plaintiff is entitled to a period of reasonable notice of 20.8 months.

[24] I encourage the parties to resolve the issue of costs. If the parties are unable to reach an agreement on costs, then the Plaintiff shall provide the court with its written costs submissions, not to exceed three pages in length exclusive of an outline of costs and any settlement offers, within one week of today’s date. The Defendant shall have two weeks from today’s date to provide its reply on the same terms.

Mr. Justice M. Faieta

Released: November 25, 2015

[^1]: Generally, see Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, para. 11; Hryniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49; Trotter v. Trotter, 2014 ONCA 841, 122 O.R. (3d) 625, para. 49; Sweda Farms Ltd.v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851, para. 33; aff’d [2014] O.J. No. 5815, 2014 ONCA 878, leave to appeal refused, [2015] S.C.C.A. No. 97. [^2]: 2015 ONSC 4189, [2015] O.J. No. 3435, paras. 21-31. [^3]: The Defendant relied on Russo v. Lawrence Park Medical Centre Ltd., [2002] O.J. No. 3964 (S.C.J.). However that decision was reversed by the Ontario Divisional Court: see [2003] O.J. No. 3641 (Div. Ct.). A further motion for summary judgment was dismissed in 2004; however the Court would have granted 12 months’ notice: see [2004] O.J. No. 5832 (S.C.J.). [^4]: In Cronk the employee had been employed for 29 years in a clerical position. Cronk was explained by the Ontario Court of Appeal in Minott v. O'Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (C.A.) as follows, at para. 64: “I do not agree, however, that this court's decision in Cronk establishes an upper limit of 12 months’ notice for a manual worker such as Minott.” Also see Di Tomaso, at para. 23. [^5]: Paquette, at paras. 43-49. [^6]: Hussain, paras. 9-10.