ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-15-522281

DATE: 20151229

BETWEEN:

ALI ASGARI
Plaintiff

– and –

975866 ONTARIO LTD.
Defendant

Andrew Monkhouse and Laura McLennan, for the Plaintiff

Nav Bhandal, for the Defendant

HEARD: December 1, 2015

G. DOW, j

REASONS FOR DECISION

[1] The plaintiff moves for summary judgment with regard to his dismissal from employment with the defendant as a Job Captain earning $89,000 per year (plus payment of up to $6,000 for tuition expenses to complete a Building Science Certificate course at the University of Toronto). He was dismissed on October 9, 2014. The defendant opposes the motion for a variety of reasons as detailed below.

Summary Judgment and Just Cause

[2] The defendant submits that the matter is not appropriate for summary judgment given its position there is a genuine issue for trial with regard to whether the plaintiff was dismissed with cause. The defendant submits proving cause will require various witnesses who gave the plaintiff oral warnings about his unacceptable level of performance.

[3] The defendant points to the plaintiff having not provided evidence relating to his tardiness, leaving work early without permission and poor performance. However, in accordance with the principles enunciated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and the need for both parties to put their best foot forward, it is my view it was for the defendant, as the employer, to marshal that evidence. The only evidence tendered was from the defendant’s owner, who acknowledged the plaintiff reported to an individual other than himself. Further, it is the defendant that would have the records necessary to demonstrate the unauthorized absences from work and poor performance.

[4] My conclusion is the same as other judges subsequent to the Hryniak decision, that is, wrongful dismissal matters are particularly well suited to summary judgment motions and assist the parties in obtaining affordable access to the civil justice system.

[5] I find the plaintiff was not dismissed with cause on October 9, 2014 for a variety of reasons, the key ones being:

(a) the lack of a specific documented warning that his performance was substandard as referenced to be required in Wood v. Canadian Marconi Co., [1995] O.J. No. 624 at paragraph 9;

(b) the employer’s failure to prove in advance of dismissal, warnings that the employment was in jeopardy if the employee continued to fail to meet reasonable objective standards of performance as referenced in Brien v. Niagara Motors Limited, 2008 41823 (ON SC), [2008] O.J. No. 3246 at paragraph 226;

(c) the reference to oral warnings contained in the defendant owner’s affidavit relies on statements made to him by others, or hearsay;

(d) the first and only documented detailing of the defendant’s complaints about the plaintiff’s performance is in an email October 21, 2014 or 12 days after he was terminated;

(e) the complete absence of any reference to termination with cause or reasons for plaintiff’s termination in the termination letter of October 9, 2014.

Pay in Lieu of Notice

[6] The defendant maintains the plaintiff signed an Offer of Employment, a three-page letter dated November 12, 2013 which references the plaintiff having been given the defendant’s Employee Handbook. The Employee Handbook contains a paragraph (at page 28) that the company has the right to end the employment

“at any time for just cause without notice or pay in lieu of notice. In the absence of just cause, the Company may terminate your employment upon provision of the minimum statutory requirements for notice, termination pay, or (if applicable) severance pay required by applicable employment standards legislation.”

However, the following page (where the plaintiff signed January 6, 2014) states “the Employee Handbook is not a contact of employment, that my employment with the company is not for a specified term.”

[7] As a result, it is confusing if not contradictory about whether the plaintiff waived his right to seek common law damages beyond that available pursuant to the Employment Standards Act, S.O. 2000 c.41, which was paid to him, that is, one week or $1,711.54. I conclude those cases referred to me by counsel for the defendant requiring my enforcement of only Employment Standards Act notice provisions are distinguishable given the Employee Handbook as it states (at page 29) that it is not (part of) a contract of employment. I am reinforced in this conclusion by the lack of evidence that the plaintiff accepted this policy in respect of his employment.

[8] With regard to the appropriate length of notice, the plaintiff was recruited by an employment agency retained by the defendant to leave his existing job at approximately $70,000 per year where he had only been working for three months to start this $89,000 per year position as a Job Captain with the $6,000 tuition reimbursement. At (now) age 42, he obtained subsequent employment from December 1 at $80,000 per year until laid off January 9. He next obtained employment in June, 2015 or more than seven months after his October 9, 2014 dismissal.

[9] The plaintiff submits he should receive five months’ pay in lieu of notice while the defendant submits it should not be greater than three months. In my view, three months is the appropriate award which I have calculated (with the assistance of counsel) to be $14,044.88 net income earned during the notice (but does not deduct the lump sum payment of $1,711.54 referenced in the termination letter of October 9, 2014).

[10] Regarding the tuition allowance, the defendant has not paid it and submits it should not be included as it did not benefit from this additional education. Further, the plaintiff failed to mentor other employees in improving their drafting skills. The parties agree the plaintiff incurred the $6,000 expense taking courses towards obtaining a Building Science Certificate from the University of Toronto and the plaintiff has provided his percentage grades of 93, 86, 83, 85, 84 and 87 from these courses. This is completely in accordance with the paragraph in the signed Offer of Employment letter dated November 12, 2013 wherein the employer “agreed to provide you with a $6,000 tuition allowance to complete your education and certificate for the Building Science Certificate at The University of Toronto”. As a result, I award same.

Costs

[11] Counsel for the plaintiff submitted a Costs Outline ranging between $20,012.08 for partial indemnity to $31,680.46 for full indemnity of which $2,509.51 was for disbursements. Plaintiff’s counsel candidly acknowledged a colleague in the firm working on the file has since departed which resulted in some duplication. Further, plaintiff’s counsel, a 2013 year of call, utilized $350 per hour as his actual rate.

[12] This compares to the Costs Outline tendered by defence counsel, a 2008 year of call, who utilized an actual hourly rate of $275 and a partial indemnity rate of $225 with a total of only $10,907.89 in fees including HST, with disbursements, the amount totaled $11,502.93.

[13] Submissions were made with regard to an amount being recovered within the monetary limit of Small Claims Court and the applicability of section 29 of the Courts of Justice Act, R.S.O. 1990, c.C.43. That section provides for an award of costs in the Small Claims Court, that disbursements should not exceed 15 percent of the amount claimed “unless the Court considers it necessary in the interests of justice to penalize a party or a party’s representative for unreasonable behavior in the proceeding”. Counsel for the defendant also submitted I should consider an award of no costs in the event the plaintiff was successful but recovered an amount less than the Small Claims Court limit.

[14] The plaintiff’s Statement of Claim sought five months’ pay in lieu of reasonable notice or $37.083.33 less the amount paid plus the $6,000 for tuition. It also sought punitive damages in the amount of $25,000 (which was abandoned) for the purpose of this motion. Plaintiff’s counsel also submitted proceeding in the Superior Court with a motion for summary judgment may have achieved a result as fast or faster than available in Small Claims Court. This claim was brought through the simplified procedure under Rule 76.

[15] I am persuaded to allow the plaintiff his costs of this action at the Superior Court level and in accordance with my discretion under section 131 of the Courts of Justice Act, R.S.O. 1990 c. C.43. The evidence was tendered by affidavit instead of a trial which, whether in Small Claims Court or the Superior Court, would likely have required viva voce evidence and inconvenienced those individuals whose evidence was tendered by affidavit. Aside from the amount of time spent by counsel for the plaintiff, the matter appears to have moved forward efficiently and within the culture shift referenced by Justice Karakatsanis in Hryniak as part of promoting timely and affordable access to the civil justice system.

[16] As a result, I would fix costs in favour of the plaintiff payable by the defendant forthwith in the amount of $10,000 for fees, plus HST of $1,300 and disbursements of $2,509.91.

[17] This is a fair and reasonable amount within the contemplation of the parties in accordance with the principles set out in Boucher et al. v. Public Accountant Council for the Province of Ontario et al., [2006] O.J. No. 2634 and Rule 57.

Mr. Justice G. Dow

Released: December 29, 2015

COURT FILE NO.: CV-15-522281

DATE: 20151229

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ALI ASGARI
Plaintiff

– and –

975866 ONTARIO LTD.
Defendant

REASONS FOR DECISION

Mr. Justice Dow

Released: December 29, 2015