Ziten v. Sadie Moranis Realty Corporation, 2015 ONSC 7987

CITATION: Ziten v. Sadie Moranis Realty Corporation, 2015 ONSC 7987

COURT FILE NO.: CV-14-504243

DATE: 20151222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE ZITEN Plaintiff

– and –

SADIE MORANIS REALTY CORPORATION and STEPHEN MORANIS Defendants

David A. Whitten, for the Plaintiff

Stephen Moranis, for the Defendants

HEARD: November 27, 2015

M. D. FAIETA, j.

REASONS FOR DECISION

INTRODUCTION

[1] On this motion for summary judgment brought solely against the Defendant Sadie Moranis Realty Corporation (SMRC), the Plaintiff George Ziten alleges that he was constructively dismissed as the Vice-President of Finance of SMRC as a result of being asked to take a 40 percent reduction in his salary due to SMRC’s financial difficulties. SMRC alleges that it proposed that the 40 percent salary reduction would only span three or four months. SMRC also alleges that Ziten’s employment was terminated for just cause as he was incompetent and dishonest.

[2] SMRC is owned by the estate of Sadie Moranis. The Defendant Stephen Moranis is the sole beneficiary of the estate of Sadie Moranis. Moranis advised that SMRC could not afford to retain counsel. Moranis was granted leave to represent SMRC on this motion for summary judgment.

[3] This motion raises the following issues:

• Did SMRC constructively dismiss Ziten?
• Was Ziten’s dismissal justified for cause?
• What amount of reasonable notice is appropriate?
• Did Ziten act reasonably to mitigate his losses?

[4] For the reasons that follow, I have found that Ziten was constructively dismissed by SMRC and that he is entitled to 23 ¾ months’ salary as reasonable notice of termination.

BACKGROUND

[5] Ziten was hired by SMRC on December 16, 1996. Ziten held exclusively managerial and/or executive-level roles including Controller, Property Manager and IT Support. On May 21, 2009, Ziten became a Director and Secretary for SMRC. Most recently, Ziten was SMRC’s Vice-President, Finance. He managed SMRC’s Controller and a part-time Accounts Payable Clerk. Amongst other things, Ziten was responsible for preparing financial statements, overseeing and approving transactions, analyzing and recommending business affairs, coordinating audits, along with elements of property management and IT support.[^1]

[6] Ziten’s total annual compensation in 2014 was $186,158.00 comprised of base salary ($156,000.00), a taxable car allowance ($12,716.00), and a non-discretionary bonus, paid quarterly (which was $17,442.00 in 2013). Ziten had received a quarterly bonus since 2000 and a car allowance since 2010.

Monday, March 24, 2014

[7] Moranis and Kirkor Apel, counsel to SMRC, met with Ziten on March 24, 2014. Moranis states that as a result of the further deterioration of SMRC’s financial condition and the requirements of the company’s creditors, he and Apel informed Ziten that his salary and hours of work would be reduced by 40 percent for three months but would thereafter be reinstated. Moranis states that Ziten agreed to this temporary salary reduction.[^2]

Wednesday, March 26, 2014

[8] Ziten sent the following email to Moranis on March 26, 2014:

On March 24, 2014 we had a brief meeting that I requested in order to better understand and discuss a temporary cutback. Because both my wage and hours of work be reduced effective March 16, 2014 due to company going through financial hardship at this time. You had a meeting to go to at 4 P.M. so we were not able to finalize this matter.

I told you I have no intention of leaving my employment and that I do not agree with the cutback. You said that this is a temporary cutback and would be till June 2014 at which time we would review the situation.

Yes, I need to know when my wage is going to be repaid and reinstated.

Since December 16, 1996 Sadie Moranis Realty Corporation has employment [sic] me in a management position and which I want to continue.

As you are the owner you have to make the final decision on matters concerning the overall business.[^3] [Emphasis added.]

[9] Ziten did not receive a written response to this email from Moranis. Both Moranis and Apel state that Apel left several voice mail messages for Ziten that he did not return.[^4]

Thursday, March 27, 2014

[10] Moranis states that Ziten was aware that other SMRC staff (Bella Levy and Sally Lai) were also asked to take a temporary 40 percent cut in salary and hours of work given that Ziten sent Moranis an email which stated:

I have not issued cheques to Bella, Brawna and Sally as you have to me know [sic] what final arrangement you made with each of them.[^5]

Friday, March 28, 2014 – First Meeting

[11] On March 28, 2014, Ziten met with Moranis and Apel. Ziten states that Apel confirmed that the pay cut would be permanent. Apel denies that he told Ziten that the pay cut would be permanent.

[12] Moranis states:

On March 28, 2014 SMRC, through Mr. Apel and myself, met with Mr Ziten to further discuss this temporary adjustment. During that meeting, we advised Mr Ziten that, given SMRC’s dire economic circumstances, we would not be surprised if he chose to look for other work. However, we also requested that, if he did secure other employment, SMRC would appreciate as much notice as possible since he (Mr. Ziten) was key to assisting in the corporation’s restructuring. The purpose of that meeting was for Mr. Apel and myself to reassure Mr Ziten of both his importance to SMRC and of the corporation’s prospects for survival.[^6]

Friday, March 28, 2014 – Second Meeting

[13] Ziten states that he had a second meeting on March 28, 2014 solely with Apel. Ziten states that Apel told him that:

• Ziten “needs to go”;
• Ziten “should look for another job”;
• “We don’t want you in that seat anymore” pointing to his desk;
• SMRC could find a replacement for Ziten at less compensation;
• SMRC was thinking about laying off Ziten.

[14] Apel denies that this second meeting occurred. He states that he has not seen Ziten since the first meeting that was held on March 28, 2014.

Friday, March 28, 2014 – Paycheque

[15] On March 28, 2014, Ziten received his paycheque for the two-week period ending on March 29, 2014. The amount paid reflected a 40 percent pay cut when compared to his previous paycheque.

Tuesday, April 1, 2014 – Letter

[16] On April 1, 2014, Ziten sent the following letter to Moranis:

This is further to our recent meetings and discussions with respect to my dismissal from employment with Sadie Moranis Realty Corporation.

On Monday March 24, 2014 you informed me, at a meeting, that you were arbitrarily reducing my annual salary from $186,158.00 to $111,695.00. I informed you that your actions were arbitrary and unacceptable to me.

It was my hope that this reduction would be brief and temporary until June 2014. However, on Friday March 28,2014, you informed me that my annual salary reduction was to be permanent and retroactive to March 17, 2014.

On March 28, 2014 you and your representative lawyer, Mr. Kirkor Apel, informed me that “I need to go” and that I “should look for another job”.

It is very clear to me that you have dismissed me from employment with Sadie Moranis Realty Corporation, arbitrarily, unfairly and without proper notice or compensation. I intend to seek legal representation with respect to your wrongful dismissal.

In addition to my claim against Sadie Moranis Realty Corporation for wrongful dismissal, I will be seeking compensation from you personally for my promised equity shares in the Corporation. On numerous occasions, including in writing, you agreed to share with me the proceeds from the sale of the Corporation in the event you decided to sell the Corporation or its assets. I believe that you are dismissing me from employment because you intend to sell the assets or shares of the Corporation without honouring your agreement to me. Further, I will be seeking compensation from you personally for my promised share of any settlement which the Corporation may make with the Canada Revenue Agency.

Kindly forward to my home address my Record of Employment as soon as possible.

Wednesday, April 2, 2014 – Email

[17] On April 2, 2014, Ziten sent the following email to Moranis:

Here is my offer, if you agree, please have Kirk Apel draw up this agreement immediately for my review and I will get back to you.

In order for me to properly fulfill my responsibilities as Vice President of Finance I will require the following assurances in a binding written agreement between myself, Stephen Moranis and Sadie Moranis Realty Corporation.

During the next 3 years my annual salary at Sadie Moranis Realty Corporation shall be guaranteed to be $186,158.00.

If, at any time during the next 3 years, I am dismissed, with or without cause, and whether with notice or not, I will receive a payment equal to two years of my salary of $186,518.00 or $372,316.00.

If, at any time during the next 3 years, I voluntarily leave my employment with Sadie Moranis Realty Corporation for any reason whatsoever, I will receive a payment equal to two years of my salary of $186,158.00 or $372,316.00.

I will require these assurances from both Sadie Moranis Realty Corporation as well as Stephen Moranis personally.

I will require some form of security for the payments described above.

Please have Mr. Apel prepare a written agreement for review and discussion.[^7]

ANALYSIS

Summary Judgment

[18] This motion for summary judgment is brought by Ziten pursuant to Rule 20 of the Rules of Civil Procedure. The following principles 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;[^8]
• 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; [^9]
• 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. [^10]
• 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.[^11]

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

• Affidavits of George Ziten, sworn March 25, 2015, June 8, 2015, and November 10, 2015;
• Affidavit of Stephen Moranis, sworn February 4, 2015;
• Transcript of the Cross-Examination of Stephen Moranis, September 17, 2015;
• Affidavit of Kirkor Apel, sworn November 24, 2015.

[20] SMRC submitted that this motion should be dismissed because Ziten’s claim for constructive dismissal raises genuine issues that require a trial. In my view, there is sufficient evidence before this Court to make the necessary findings of fact, to apply the law to the facts and in a forum that would provide a proportionate, more expeditious and less expensive means to achieve a just result. After several appearances in Civil Practice Court the hearing of this motion on November 20, 2015 was made peremptory on the parties. SMRC was granted an adjournment to file the affidavit of Kirkor Apel. This motion was heard one week later.

Constructive Dismissal

[21] In Wronko v. Western Inventory Service Ltd.[^12] the Ontario Court of Appeal described the legal context of an employer’s unilateral decision to change a term of an employment contract, at para. 24, as follows:

The basic premise underlying the individual contract of employment is that it continues as long as both parties agree. In common parlance, the employment is “at will”; that is, either party has a right to terminate the employment relationship without cause. However, the use of the expressions “at will” and “a right to terminate” must not obscure the reality that the employer’s right to terminate an employee without cause is a breach of contract that carries with it consequences for the employer, both under statute and at common law. The use of these expressions must not obscure the reality that an employer’s unilateral change to a fundamental term of an employment contract constitutes a repudiation of the contract. An act of repudiation carries consequences, which depend on how the employee responds to the repudiation.

[22] In Potter v. New Brunswick (Legal Aid Services Commission),[^13] the Supreme Court of Canada described, at paras. 30-32, the legal principles underlying a claim for constructive dismissal:

When an employer's conduct evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer, or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal… Since the employee has not been formally dismissed, the employer's act is referred to as "constructive dismissal". The word "constructive" indicates that the dismissal is a legal construct: the employer's act is treated as a dismissal because of the way it is characterized by the law…

The burden rests on the employee to establish that he or she has been constructively dismissed. If the employee is successful, he or she is then entitled to damages in lieu of reasonable notice of termination… the purpose of the inquiry is to determine whether the employer's act evinced an intention no longer to be bound by the contract.

Given that employment contracts are dynamic in comparison with commercial contracts, courts have properly taken a flexible approach in determining whether the employer's conduct evinced an intention no longer to be bound by the contract.

[23] In Potter, the Supreme Court identified two forms (or “branches”) of constructive dismissal: “that of a single unilateral act that breaches an essential term of the contract, or that of a series of acts that, taken together, show that the employer no longer intended to be bound by the contract.”[^14]

[24] The test for constructive dismissal under the first branch examines whether there has been a breach of the employment contract and whether that breach substantially altered the employment contract:

At the first step of the analysis, the court must determine objectively whether a breach has occurred. To do so, it must ascertain whether the employer has unilaterally changed the contract. If an express or an implied term gives the employer the authority to make the change, or if the employee consents to or acquiesces in it, the change is not a unilateral act and therefore will not constitute a breach. If so, it does not amount to constructive dismissal. Moreover, to qualify as a breach, the change must be detrimental to the employee…

Once it has been objectively established that a breach has occurred, the court must turn to the second step of the analysis and ask whether, "at the time the [breach occurred], a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed"... A breach that is minor in that it could not be perceived as having substantially changed an essential term of the contract does not amount to constructive dismissal.[^15] [Footnotes omitted.]

[25] The test for constructive dismissal under the second branch asks whether there has been “conduct that, when viewed in the light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract.”[^16] The Supreme Court stated that the “employee is not required to point to an actual specific substantial change in compensation, work assignments, or so on, that on its own constitutes a substantial breach.”[^17] Rather, “the focus is on whether a course of conduct pursued by the employer ‘evince[s] an intention no longer to be bound by the contract’.”[^18]

[26] If the employee establishes that he or she has been constructively dismissed, then “…he or she is entitled to damages in lieu of reasonable notice of termination”.[^19]

ISSUE #1: DID SMRC CONSTRUCTIVELY DISMISS ZITEN?

[27] Relying on the first branch of the test, Ziten submits that the decision by SMRC to reduce his salary by 40 percent amounted to a constructive dismissal.

Was the salary reduction a unilateral act?

[28] On March 24, 2014, Ziten was notified that his salary would be reduced by 40 percent for at least three months. This salary reduction was implemented on March 28, 2014 when Ziten’s paycheck reflected a retroactive reduction in his salary of 40 percent for the prior two-week period. I accept Ziten’s evidence that Moranis advised him on March 28, 2014 that this salary reduction would be permanent as reflected in Ziten’s letter dated April 1, 2014 to Moranis.

[29] There is no evidence that Ziten’s employment contract authorized such a reduction in salary.

[30] SMRC submits that Ziten acquiesced to the demanded salary reduction as he had intended to retire, and did so following SMRC’s decision to reduce his salary. I reject this submission. There is nothing in the correspondence from Ziten to SMRC which suggests that his response to the unilateral salary reduction would be to retire. I prefer Ziten’s submission which points to his email dated March 26, 2014 to Moranis after receiving notice of the unilateral decision to reduce his salary, which states “I told you I have no intention of leaving my employment…” SMRC’s submission is also inconsistent with Ziten’s offer to return to work by email dated April 2, 2014 if his salary was re-instated and guaranteed.

[31] SMRC vigorously argues Ziten accepted a 40 percent reduction in his salary on a temporary basis in order to help SMRC through a period where it was struggling. While it is clear that SMRC was in financial difficulties in early 2014 given the demands from its bank and landlord, it is equally clear to me that Ziten did not, in his words, “agree with the cutback”. Similarly, his letter of April 1, 2014 states that the salary reduction was “unacceptable”. Ziten did not return to work for SMRC after March 28, 2014. In my view, the 40 percent reduction in Ziten’s salary was unilaterally imposed and constituted a breach of his employment contract.

Could SMRC’s decision to unilaterally reduce Ziten’s salary be reasonably perceived as having substantially changed an essential term of the employment contract?

[32] Remuneration is a significant, if not the most significant, term of an employment contract. In my view a 40 percent reduction in salary would reasonably be perceived as a substantial change in an essential term of Ziten’s employment contract.[^20] The fact that SMRC was in financial difficulty does not alter that perception.

[33] For the reasons described above, I find that Ziten was constructively dismissed by SMRC on March 28, 2014.

ISSUE #2: WAS ZITEN DISMISSED FOR CAUSE?

[34] Paragraph 11 of the Statement of Defence and Counterclaim states:

…cause exists for the Plaintiff’s termination as a result of his disruptive misconduct towards the consultants, Farber Financial, which was assisting SMRC in its corporate refinancing, his failure to provide Farber Financial with the financial reporting it required, disruptive conduct with suppliers and co-workers, his conduct respecting RECO, and gross incompetence.

[35] SMRC did not formally dismiss Ziten and accordingly, for reasons that I will explain, it is now grasping at straws to justify its constructive dismissal of Ziten.

[36] The Defendants submitted the affidavit of Kirkor Apel. He also testified at the hearing of this motion. Mr. Apel’s law office is located in SMRC’s premises. He testified that Ziten became bitter during 2014 and that he took the hard drive from his computer when he left following his termination which was subsequently returned. Mr. Apel’s affidavit states:

• he was always rude to the cleaners;
• cancelled CRA accounts;
• accounting inaccurate, books never balanced;
• no year-end financial statements;
• snappy and rude with staff who feared reprisal if they complained;
• unapproachable by staff;
• office was in disarray, no organization, random filing, papers everywhere, took 9 months to get alphabetical order and accounting organized;
• called Farber and Associates “fair haired boys” and was uncooperative and obstructive with them;
• leased equipment and had them stored offsite, without anyone’s knowledge.

[37] Mr. Apel’s affidavit goes on to state “While George was previously considered to be honest and a friend, it appears he has decided to be dishonest in order to secure additional funding for his retirement…”

[38] Some of the above allegations were answered. For instance, Ziten provided an email from Farber which commended him for his work on a particular transaction.

[39] Had Ziten’s conduct justified dismissal for cause, as SMRC now alleges, I would have expected that SMRC would have communicated those concerns to Ziten before he was constructively dismissed. There is no correspondence in the record to suggest that Ziten was put on notice. It makes no sense that, on March 28, 2014, Moranis asked Ziten to stay with SMRC and reassured him of his “importance to SMRC” but yet believed that he was grossly incompetent and disruptive.

[40] I also note that, at times, Mr. Apel’s evidence and behavior in the witness stand made him appear to be an advocate for the Defendants and thus undermined his credibility.

[41] I dismiss the Defendants’ submission that Ziten was terminated for cause.

ISSUE #3: WHAT AMOUNT OF REASONABLE NOTICE OF TERMINATION IS APPROPRIATE?

[42] The applicable legal principles for determining reasonable notice were described by Justice Perell in Paquette v. TeraGo Networks Inc.[^21] 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.

[43] As noted, Ziten was 63 years old when his employment was terminated. He had been employed for 17.25 years by the Defendant and most recently held the position of Vice-President of Finance.

[44] Ziten’s position is that he is entitled to 24 months reasonable notice, and relies on the cases below. The Defendants did not submit any case law on this point.

Case	Age	Years of Services	Character of Employment	Reasonable Notice (Months)
Turner v. Canadian Admiral Corp. [1980] O.J. No. 3002 (S.C.)	56	13	Executive Vice President	21
Wilkinson v. Ronyx Corp., [1981] O.J. No. 243 (S.C.)	50	23	Vice-President, Land Development and Sales	21
Rock v. Canadian Red Cross Society (1994), 1994 CanLII 7412 (ON SC), 5 C.C.E.L. (2d) 231 (Gen. Div.)	53	14	Director	24
Dunbar v. Port Coquitlam (City) (1992), 44 C.C.E.L. 206 (B.C.S.C.)	50	17	Fire Chief	24
Petit v. Insurance Corp. of British Columbia (1995), 1995 CanLII 177 (BC SC), 13 C.C.E.L. (2d) 62 (B.C.S.C.)	53	18	Manager	24

[45] Further guidance in determining the reasonable notice owed to an employee in a high-paying, senior financial managerial position is available in the following cases.

Case	Age	Years of service	Character of Employment	Reasonable notice (months)
Galbraith v. Acres International Ltd. (2001), 2001 CanLII 28296 (ON SC), 8 C.C.E.L. (3d) 66 (S.C.J.) aff’d 2002 CarswellOnt 3061 (C.A.)	55	9	Chief Financial Officer	15 months (by consent); 3 months added due to age-related discrimination
Greaves v. Ontario Municipal Employees Retirement Board, (1995), 1995 CanLII 7288 (ON SC), 129 D.L.R. (4th) 347 (S.C.J.)	46	12	Vice President, Equities and Investment Strategy	15
Walls v. Lewis (2009), 2009 CanLII 31983 (ON SC), 97 O.R. (3d) 16 (S.C.J.)	67	9	Vice President, Finance, corporate secretary and shareholder	12
Love v. Acuity Investment Management Inc. (2009), 2009 CanLII 28211 (ON SC), 74 C.C.E.L. (3d) 272 (S.C.J.)	50	2.5	Senior Vice President	5
Bahrami v. AGS Flexitallic Inc., 2015 ABQB 536, 2015 CarswellAlta 1554	44	0.75	Vice President, Finance	6
Kokilev v. Picquic Tool Co., 2010 BCSC 141285, C.C.E.L. (3d) 227	42	8	Vice President, Finance	10
Stanley v. Advertising Directory Solutions Inc., 2014 BCSC 376, 2014 CarswellBC 604	51	15	Executive Director of Finance	19

[46] 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 24 months.

ISSUE #4: DID ZITEN ACT REASONABLY TO MITIGATE HIS LOSSES?

[47] The applicable legal principles in relation to an employee’s duty to mitigate his losses were also outlined in Paquette:[^22]

• 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.

[48] Ziten states that he has applied to at least 54 comparable positions over the 19 months prior to November 10, 2015. He has not been re-employed or earned any replacement income in that period with the exception of $161.00 that he earned working for Elections Canada prior to the last election. He does not have any outstanding job offer nor has he been offered a job.

[49] Ziten was declared legally blind in June 2015 and is no longer permitted to operate an automobile.

[50] Ziten’s circumstances are similar to those described by Justice L.B. Roberts, as she then was, in Hussain v. Suzuki Canada Ltd.[^23] at paras. 14-17:

What is the appropriate contingency factor? Based on the uncontroverted evidence before me, I draw the reasonable inference that it is highly unlikely that the plaintiff will become re-employed in a position comparable to that held with the defendant. The plaintiff is now 65 years old and, while not at all denigrating the importance of his position with the defendant and his experience and skills, he is undoubtedly facing extremely stiff competition with much younger applicants for the same kind of employment.

The facts are that his 27 applications have resulted in only 1 unsuccessful telephone interview and that the plaintiff remains unemployed almost 9 months after his dismissal; this is clear evidence of the difficulties that the plaintiff is facing and will continue to encounter over the length of his notice period. The plaintiff is significantly disadvantaged because of his age when competing with younger employees: … Finally, at 65 years of age, it cannot be seriously debated that the plaintiff is in the twilight if not at the end of his working years and that, because of his age, his chances of employment in a similar or even a related industry are remote…

Taking all of these circumstances into account, I see about a 1% chance of re-employment for the plaintiff and reduce the 26 month notice period by 2 weeks to 25.5 months.

[51] Given Ziten’s age, his condition and his inability to find comparable work since April 2014, it is very unlikely that Ziten will find comparable employment. The most practical and efficient way to address this future duty to mitigate is to apply a contingency as this Court did in Hussain. It is my view that Ziten has about a 1 percent chance of finding comparable employment prior to the end of the reasonable notice period. Accordingly, I reduce Ziten’s reasonable notice period from 24 months to 23 ¾ months.

CONCLUSIONS

[52] This action, as against SMRC, raises no genuine issue requiring a trial. This motion for summary judgment is granted. Ziten was constructively dismissed by SMRC on March 28, 2014. SMRC did not dismiss Ziten for cause, and cannot retrospectively do so. In any event, SMRC has not demonstrated that there was any justification to dismiss Ziten for cause. Ziten is entitled to a period of reasonable notice of 23 ¾ months.

[53] Ziten shall provide his written costs submissions, not to exceed three pages in length exclusive of an outline of costs and any settlement offers, within two weeks of today’s date. SMRC shall have four weeks from today’s date to provide its costs submissions on the same terms.

Mr. Justice M. D. Faieta

Released: December 22, 2015

CITATION: Ziten v. Sadie Moranis Realty Corporation, 2015 ONSC 7987

COURT FILE NO.: CV-14-504243

DATE: 20151222

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE ZITEN Plaintiff

– and –

SADIE MORANIS REALTY CORPORATION and STEPHEN MORANIS Defendants

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: December 22, 2015

[^1]: Affidavit of George Ziten, sworn December 22, 2014, paras. 4-7. [^2]: Affidavit of Stephen Moranis, sworn February 4, 2015, para. 22. [^3]: Affidavit of Stephen Moranis, sworn February 4, 2015, para. 24. [^4]: Affidavit of Stephen Moranis, sworn February 4, 2015, para. 32. [^5]: Affidavit of Stephen Moranis, sworn February 4, 2015, para. 23. [^6]: Affidavit of Stephen Moranis, sworn February 4, 2015, para. 25. [^7]: Affidavit of Stephen Moranis, sworn February 4, 2015, para. 31. [^8]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.04(2)(a). [^9]: Canada (Attorney General) v. Lameman, 2008 SCC 14, 1 S.C.R. 372, para. 11. [^10]: Rule 20.04(2.2). [^11]: 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. [^12]: 2008 ONCA 327, 90 O.R. (3d) 547. [^13]: [2015] 1 S.C.R. 500, 2015 SCC 10. See also Morgan v. Vitran Express Canada Inc., 2015 ONCA 293, [2015] O.J. No. 2184. [^14]: Potter, para. 43. [^15]: Potter, at paras. 37, 39. [^16]: Potter, para. 42. [^17]: Potter, para. 42. [^18]: Potter, para. 42. [^19]: Potter, para. 31. [^20]: In Viens v. Suburban Distributors Ltd., [2000] O.J. No. 2623 (S.C.J.), a demand that an employee take a twenty percent reduction in salary or be laid off was found to amount to constructive dismissal. [^21]: 2015 ONSC 4189, [2015] O.J. No. 3435, paras. 21-31. [^22]: Paquette, at paras. 43-49. [^23]: [2011] O.J. No. 6355 (S.C.J.).