COURT FILE AND PARTIES

COURT FILE NO.: CV-15-510397

DATE: 2015-12-21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LISA MAASLAND, Plaintiff

AND:

THE CORPORATION OF THE CITY OF TORONTO, Defendant

BEFORE: Mr. Justice Graeme Mew

COUNSEL:

Barry Weintraub and Garett Schromm, for the Plaintiff

Sharmila Clark and Amandi Esonwanne, for the Defendant

HEARD: 18 November 2015, in Toronto

ENDORSEMENT

(Motion for Summary Judgment)

[1] The parties submit for summary judgment the plaintiff’s claim that she was wrongfully terminated by the defendant from her position as a Senior Engineer. Both parties agree that their dispute can be resolved using the procedures contained in Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Background

[2] The plaintiff is a geophysical engineer by training and holds the Professional Engineer (“P.Eng.”) designation. She joined the former municipality of Metropolitan Toronto in 1989 as a software programmer in the Traffic Signal Control Centre of the Transportation Department. She brought that position what she described in the covering letter that accompanied her application for the job as “over six years of software experience, three of these as a Fortran Programmer”.

[3] In 1992, the plaintiff was transferred to the Corridor Traffic Control Section. For a number of years she was a “Programming Supervisor”, a management position, in that section. In 1999 she took on a position described by her as “Senior Systems Engineer” for the Urban Traffic Control Systems Unit of what had by then become the amalgamated City of Toronto (there is some dispute as to whether the word “Systems” formed part of her former job title).

[4] In recent years, a review of the organisational structure and responsibilities of various units within the Traffic Management Centre found that information technology roles were being performed by groups in two different units in the Traffic Management Centre. One of those groups was led by the plaintiff and the other by Georgian Titichi.

[5] A decision was taken to consolidate these units under the leadership of Mr. Titichi in a renamed unit, Intelligent Transportation Systems, Operation (“ITSO”) and to move the plaintiff to a newly created Intelligent Transportation Systems Delivery (“ITSD”) unit as a senior engineer, at the same wage level, working out of the same location.

[6] Somewhat ironically, it was on the same day that the plaintiff received a watch from the City of Toronto acknowledging her 25 years of service, that she was advised that the reorganisation would take effect on 2 April 2014, just a few days hence.

[7] At that juncture, the plaintiff inquired whether there were other options for her. She made it clear that she considered the proposed new position to be inferior to the one she then held.

[8] There was some discussion of the possibility of the plaintiff being considered for an exit package but, ultimately, she was informed that no such package would be available to her because her position was not actually being “deleted”.

[9] As of 2 April 2014, the ITS Delivery Unit had no staff or office space. According to the plaintiff, she turned up for work but was left “sitting in her office wondering to whom she was to report and what her responsibilities were”. She worked on 3, 8 and 9 April during which time she says that:

“I simply spent the last few days of work cleaning up my office and preparing the systems so that Mr. Titichi could carry my work forward.”

[10] The plaintiff called in sick on 14 and 15 April 2014. On 16 April 2014 the plaintiff’s lawyer sent a letter to the City. The essence of the position advocated on her behalf in that letter is essentially the same as the core arguments advanced in support of her claim that she was constructively dismissed:

“Ms. Maasland’s previous position involved hands-on computer engineering applications trouble-shooting traffic control issues as they arose, in a vibrant real-time environment. She had numerous managerial functions, with several people reporting directly to her including two Systems Integrators and one ETT 1, and she enjoyed the assistance and training of University and High School co-op students. She also had a role in supervising the work of Mr. Titichi and one of his System Integrators (although they did not report directly to her) She thoroughly enjoyed her work.

The proposed position to which the City apparently plans to assign Ms. Maasland is a boring desk job, essentially involving writing Requests for Proposals for future traffic initiatives. While it is a job that Ms. Maasland is capable of doing, it does not properly utilize or require her level of specialized expertise and is a completely different job, more suited for a civil engineer than an IT professional. The number of people reporting to her will be cut to one (two ETT 1s reporting to two Senior Engineers), and she will no longer exercise any managerial functions.

This plan was not discussed with Ms. Maasland at all prior to her being advised of it, and is totally unacceptable to her, for various reasons including the foregoing. It may well be that the planned new assignment for Ms. Maasland is motivated by desire to avoid the termination of her employment so close to retirement, that Ms. Maasland feels humiliated by the change. She is being removed from the computer systems environment she has specialized in for 25 years to a position which her supervisors know or ought to know will be unacceptable to her.”

[11] From 9 April 2014 until 17 June 2014 the plaintiff did not go to work. She began to use her vacation and voluntary leave time. She said that she did not see any other option as the defendant was not providing her with work to perform which would have been consistent with her contract of employment.

[12] On 25 June 2014 the defendant informed the plaintiff that her absence from work would be treated as an unpaid leave of absence. Her group benefits plan from the City was terminated effective 19 June 2014.

[13] On 16 October 2014 the defendant sent the plaintiff a letter informing her that the ITS Centre Unit was “up-and-running”. She was advised that unless she returned to work by 7 November 2014, her employment would be terminated for cause.

[14] The plaintiff did not return to work.

[15] By letter dated 15 December 2014, the defendant terminated the plaintiff’s employment. The letter stated:

“You have not returned to work, and as a result the City is left with no choice but to terminate your employment for abandonment effective immediately. The City notes that you have failed to mitigate your damages by not returning to work.”

Was The Plaintiff Constructively Dismissed?

[16] The parties agree that the core issue to be determined is whether the plaintiff was constructively dismissed.

[17] The test for constructive dismissal is whether, at the time the alleged breach of the employment contract occurred, a reasonable person in the same situation as the employee would have felt that the essential terms of her employment were being substantially changed: Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, [2015] 1 S.C.R. 500, at para. 60. The employee bears the onus of proof.

[18] It is accepted that an employer can reasonably transfer or re-assign an employee: Paterson v. British Columbia, [1985] B.C.J. No. 102 (BCSC) at 71-72. The fact that a transfer or reassignment results in a loss of status or prestige will not necessarily constitute constructive dismissal: Reber v. Lloyd’s Bank International Canada, [1985] B.C.J. No. 2341 (C.A.). Rather, the court will review the overall employment relationship to determine whether a breach has occurred. In Randall Echlin and Jennifer Fantini, Quitting for Good Reason: The Law of Constructive Dismissal in Canada, (Aurora: Canada Law Book, 2001) at p. 207 the learned authors state:

Courts are much less likely to interfere with an employer’s discretion to modify an employee’s responsibilities, where the new position offered is similar with respect to its level within the corporate hierarchy and where the employee suffers no loss of remuneration.

[19] The plaintiff did not have a written contract of employment with the City. Although at various points along the way attempts had been to summarise the essential duties of her employment, as the defendant itself pointed out, the demands of the plaintiff’s position were constantly changing, driven, in part, by the rapid pace of developments in the technology utilised in modern urban traffic management.

[20] As part of its case, the defendant relied on a generic job profile approved for all “senior engineers” in the Transportation Division. Furthermore, the City argued that the duties outlined in the ITSC position were consistent with the plaintiff’s knowledge of standard engineering principles and her “extensive experience in project management, cost control and budgeting.”

[21] The City of Toronto argued that it is reasonable for organisations to effect change within the workplace. In particular, it was reasonable for the City of Toronto to rationalise the two departments that previously existed into one. I doubt whether any ratepayer would argue with that as a general principle.

[22] While, as indicated, the City is not to be faulted for seeking greater efficiencies in the way that it delivers services to the people of Toronto, a reasonable person observing the changes in the plaintiff’s terms of employment would, in my opinion, conclude that her role would change substantially.

[23] She went from what was essentially an operational role, in which she was able to deploy the computer capabilities that she had developed over 25 years with the City, to a far more administrative role. Whether or not her new job, viewed objectively, could fairly be described as “boring”, the fact remains that it was a substantial change.

[24] I do not place a great deal of weight on the fact that the plaintiff no longer had as many people reporting to her or, indeed, the fact that someone, over whom she had previously exercised a supervisory function, was now the head of the new department that she had been moved out of.

[25] The nature and quality of the changes to the plaintiff’s job in the present case are analogous to those in Corker v. University of British Columbia, 1990, Carswell B.C. 726 (BCSC), where an employee who had been hired to provide counselling services at a university was unilaterally transferred into a position where she was to be responsible for cataloging reference materials (her counselling clients were transferred to others). Despite the fact that her title and salary remained the same, the court concluded that she had been constructively dismissed. The employer was not entitled to alter her duties unilaterally in the manner in which it had done because she was hired to provide counselling services and not clerical services.

[26] The City characterises the plaintiff as unwilling to change, to move with the times, to embrace better ways of doing things and to demonstrate a measure of flexibility that might be expected from a senior employee with her experience and qualifications.

[27] That perspective, in my view, underestimates the significant changes which the plaintiff was being asked to make. While her supervisors denied that her position had been “deleted”, in reality it had.

[28] I conclude that it was reasonable for the plaintiff to decline to go along with the changes. The defendant may have hoped that by standing firm it could avoid having to offer the plaintiff a package but, at the end of the day, the facts support the view that the plaintiff was constructively dismissed on 2 April 2014.

Notice Period

[29] The plaintiff argues that the reasonable notice period should be determined in accordance with the principles established in Bardal v Gobe & Mail Ltd. (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140 which require the court to take account of factors such as the character of the employment, the employee’s length of service, the employee’s age, and the availability of comparable employment in the market.

[30] A number of comparable cases were cited to support the contention that the proper application of the Bardal criteria would result in a notice period of 30 months having regard to the following facts:

a. The plaintiff was 57 years old at the time of her dismissal and less than four years away from retirement.

b. She had been employed with the City for 25 years as of September 2014

c. Ms. Maasland occupied a management position of considerable responsibility, managing four or five employees directly and two more informally. She also attended various City administrative committees related to IT on behalf of the TMC in her role as a Divisional IT manager.

d. The plaintiff was a specialist in an already specialised field. She was highly experienced and qualified in the computer systems aspects of ITS.

e. She had always received positive performance evaluations.

[31] Of the comparables provided, particular reliance is placed on David v. Congregation B’Nai Israel, 1999 14854 (ON SC) in which a 59 year-old rabbi with 26 years' service was dismissed by the congregation and awarded 30 months' notice, or approximately 1.15 months per year of service. Like the plaintiff in that case, it is argued that Ms. Maasland was a highly specialised professional with limited comparable job opportunities for her outside of jobs at the City of Toronto. Furthermore, such job opportunities at other municipalities, if available, would require either a substantial commute or that she move her place of residence.

[32] While acknowledging the usual approach to determination of reasonable notice, the City argues that if there is evidence of custom of reasonable notice in the context of a particular case, such as a separation package policy, a court may apply that custom.

[33] The defendant has a “Position Termination Schedule” which is based on a “Total Separation Formula” of 3 weeks for each completed year of service up to 96 weeks maximum. As I read the schedule, someone with 25 years of service would receive 75 weeks’ total separation payment (17.3 months).

[34] In Gismondi v. Toronto (City) (2003), 2003 52143 (ON CA), 64 O.R. (3d) 688 (C.A.) it was held that the City's separation package policy was not unreasonable.

[35] The plaintiff in that case had, for 20 years, been the Director of Roads and Sidewalk Operations for the City of North York at the time of its amalgamation with the other municipalities that now comprise the City of Toronto. He was terminated and offered a package based on 80 weeks’ termination pay in accordance with a similar package to the one that is available today. The trial judge awarded 116 weeks, which exceeded “by a considerable amount the 24 months' (104 weeks') salary in lieu of notice in Wallace [v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701] that Iacobucci J. described at para. 109 as "at the high end of the scale".” Concluding that the trial judge had not otherwise explained why the 80 weeks' notice offered by the City was inconsistent with the Bardal factors, the Court of Appeal set the reasonable notice period at 80 weeks.

[36] An obvious distinguishing factor between the instant case and Gismondi is that in the present case the City did not offer the plaintiff a package. Furthermore, the gap between what I would consider reasonable notice in all of the circumstances and the 75 weeks the plaintiff would get under the package is sufficiently wide that I would regard it as wrong to substitute that notice period for what the plaintiff would otherwise be entitled to at common law.

[37] Having regard to the Bardal factors, and finding myself in general agreement with the plaintiff’s submissions as summarised above, but also recognising that 30 weeks would be very much at the upper end of the scale, even allowing for some notice inflation since Wallace, I would fix the notice period at 26 months.

Mitigation

[38] The defendant bears the onus of establishing a failure on the plaintiff’s part to mitigate her loss.

[39] The defendant argues that the plaintiff could have pursued other “attractive” positions with the City that were posted while she remained an employee. In theory perhaps there could have been other jobs that it would have been reasonable for her to at least investigate. But in reality, what happened to the plaintiff was humiliating. It was reasonable for her to consider her employment relationship with the City as irreparably damaged.

[40] The plaintiff does, of course, have a duty to mitigate. But at the age of 58, and having become quite specialised in traffic management systems, employment opportunities which it would be reasonable to expect the plaintiff to consider are few and far between.

[41] There was a job opening with York Region that the plaintiff believed herself to be qualified for but which she did not apply for because the job would have been 50km from her home.

[42] There is also a suggestion that a personal family tragedy has contributed towards the plaintiff’s failure to obtain new employment. I do not find convincing evidence to support that suggestion.

[43] Ultimately, I am not persuaded that the plaintiff has failed to mitigate. It was reasonable for her not to apply for other employment with the City or to pursue a job that would, if she had got it, have involved a significant daily commute.

Remedies

[44] The plaintiff was constructively dismissed on 2 April 2014 and is entitled to salary in lieu of notice for 26 months. Counsel have agreed that the monthly income figure to be used for the purpose of calculating the plaintiff’s damages is $11,877 per month. She is also entitled to amounts reflecting benefits that would have accrued to her during the notice period as well as a sick pay gratuity of $32,766.

[45] A declaration will also go that, as the plaintiff was not terminated for just cause, she is entitled to make pension contributions (to the extent she has not already done so) during the period of 26 months following her constructive dismissal.

[46] If counsel are unable to agree on the calculation of damages arising from these reasons, I may be spoken to.

Costs

[47] I am presumptively of the view that the plaintiff should be awarded costs, fixed on a partial indemnity scale. If counsel are unable to agree on costs, the plaintiff should provide a costs outline and costs submissions not exceeding three pages in length by no later than 8 January 2016 and the defendant should provide its submissions, also not to exceed 3 pages, by 15 January 2016.

Graeme Mew J.

Date: 21 December 2015