CITATION: Merritt v. Tigercat Industries, 2016 ONSC 1214
COURT FILE NO.: CV-15-130 SR
DATE: 2016-02-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Keith Gordon Merritt
Matthew J. Lambert,
Plaintiff
– and –
Tigercat Industries Inc. and Steve Crosby
Defendants
Counsel for the Plaintiff
Carol S. VandenHoek,
Counsel for the Defendants
HEARD: January 26, 2016
REASONS FOR DECISION
THE HONOURABLE MR. JUSTICE D.J. GORDON
[1] In his motion, the plaintiff seeks summary judgment against the corporate defendant for wrongful dismissal in the amount of $83,333.33, plus prejudgment interest and costs. The defendants oppose the relief sought, saying a trial is necessary. They also move for summary judgment dismissing the action as against Steve Crosby and for costs.
The Parties
[2] Keith Gordon Merritt is 67 years of age. He resides in the County of Brant. For some years, Mr. Merritt was employed by Tigercat Industries Inc. (“Tigercat”), essentially as a labourer, with other duties from time to time as a truck driver and material handler. At the time of his termination, it is agreed Mr. Merritt’s remuneration was $50,000 per annum.
[3] Tigercat is an Ontario corporation. It is involved in the design and manufacture of forestry equipment and off-road industrial equipment. Tigercat has production facilities in several municipalities in Ontario, including Paris and Cambridge.
[4] Steve Crosby is the Vice-President of operations for Tigercat, overseeing the day-to-day operations at the Paris facility. He has been employed by Tigercat since 1995 and has been in his current position since 2010. Mr. Crosby has an engineering degree, an MBA, as well as additional training in management and leadership through various college and other programs.
Overview
[5] Mr. Merritt was originally hired by Tigercat in 1998. He was fired on February 2, 2015, purportedly for cause. While no written notice of termination was delivered to Mr. Merritt, oral reasons are said to have been presented to him by Mr. Crosby pertaining to his discipline record, the impact or potential impact of his criminal charges on the reputation of Tigercat and his deceit regarding the involvement of other employees and other matters.
[6] As hereafter discussed, there is a significant evidentiary shortfall regarding Mr. Merritt’s conduct, as alleged and relied upon by Tigercat, as the basis for termination for cause.
Period of Employment
[7] Mr. Merritt commenced employment with Tigercat on April 13, 1998. He was terminated or laid off on December 8, 2000 for undisclosed or unknown reasons. Mr. Merritt acknowledged termination. Of some interest, the Record of Employment (“ROE”) issued by Tigercat and delivered to Human Resources Development Canada, now known as Service Canada, indicated the reason for issuing the ROE was Code A, namely, shortage of work, with the expected date of recall “unknown”.
[8] Mr. Merritt was rehired on September 30, 2002. He was laid off on January 23, 2009. The ROE indicates Code A again, shortage of work, but with an expected recall on February 2, 2009.
[9] Recall occurred on August 17, 2009. On February 6, 2015, a two week leave of absence was provided to Mr. Merritt due to criminal charges, as hereafter discussed. This event lead to another ROE, although the stated reason was also Code A, shortage of work, with expected date of recall being “unknown”.
[10] Mr. Merritt returned to work on February 23, 2015 following the leave of absence. He was fired that day. The ROE indicated the reason as Code M, dismissal, and “not returning”. For some unexplained reason, the ROE was not issued until May 13, 2015, some three months after the event, and two months after the statement of claim was issued. Mr. Merritt says he never received this ROE. There is no evidence to the contrary. Mr. Crosby simply asserts the ROE was submitted electronically to Service Canada.
Workplace Discipline
[11] Four events are said, on behalf of Tigercat, to have occurred during Mr. Merritt’s period of employment, namely:
(i) November 14, 2011 – Tigercat asserts that Mr. Merritt lied by calling in sick for two days when, in fact, his daughter was having a baby. Mr. Merritt says he was simply required to call in if he would not be at work. No report was generated, nor was a warning delivered. An email was simply put in Mr. Merritt’s file.
(ii) January 25, 2013 – A load rolled off a trailer when moved by Mr. Merritt as it was not properly secured. A report was generated and warning issued, although the warning was not acknowledged by Mr. Merritt on the form and he denied being told. Further, the investigator recorded “there is not enough room to use bar to tighten straps”. He recommended remedial action for what was an operations deficiency.
(iii) August 27, 2013 – Mr. Merritt was suspended one day for an incident involving a load rolling off a trailer. The investigator indicates they are looking to replace Mr. Merritt as a driver but will attempt to offer him continued employment under a different role.
(iv) October 7, 2014 – Mr. Merritt was suspended one day after backing into another vehicle while doing a mail run. The investigator recorded that Mr. Merritt was taken off the mail run permanently.
Arrest
[12] On February 5, 2015 police officers arrested Mr. Merritt at the Paris facility. He was charged with two counts of sexual assault against minors. The alleged events did not occur in the workplace and did not involve any employees of Tigercat.
Meeting – February 6, 2015
[13] Mr. Crosby became aware of the arrest on February 5, 2015. He met with Mr. Merritt the following day. Mr. Merritt declined to discuss the details of the charges, simply reporting they did not involve any employees at Tigercat. Mr. Crosby presented Mr. Merritt with a letter of resignation. Mr. Merritt refused to sign. Mr. Crosby indicates there was a discussion of various options. Mr. Merritt says no options were provided. Regardless, the end result of the meeting was for Mr. Merritt to take a two week leave of absence.
Return to Work
[14] Mr. Merritt reported for work on February 23, 2015 following his leave of absence. He met with Mr. Crosby. Mr. Crosby assigned Mr. Merritt to the Cambridge plant to fill a vacancy as a material handler. Mr. Merritt began his shift.
Mr. Crosby Meets With an Employee
[15] Several hours after Mr. Merritt had commenced working on February 23, 2015, Mr. Crosby spoke to an unidentified female employee at the Cambridge facility. Mr. Crosby says this employee was visibly upset.
[16] In his initial affidavit, sworn September 16, 2015, Mr. Crosby says:
The female employee advised that she was very upset to see the plaintiff in the facility as she was involved in the criminal case against him. The employee advised that she had previously worked at the plaintiff’s farm when she was a minor. The employee advised that during this time the plaintiff made very inappropriate and sexual advances towards her and she was not prepared to interact with him in the workplace. (emphasis added)
[17] In his second affidavit, sworn October 22, 2015, Mr. Crosby says this female employee provided a handwritten not on March 2, 2015. This note says:
For the record of Tigercat Industries on Monday February 23rd 2015 when Steve Crosby asked me why I was not okay with working in close proximity to Keith Merrit [sic] I told him that roughly 3 years ago I was around Keith alot due to his marriage to my mom’s cousin. I rode and worked at the Merrit [sic] farm regularly. During this time Keith made very inappropriate and sexual comments to me. He then made me so uncomfortable with his physical advances that I stopped going out to the farm. Therefore I was very relieved when Steve told me he would have him (Keith) moved from the plant on that day.
[18] Contrary to Mr. Crosby’s assertion, this employee made no reference to being involved in Mr. Merritt’s criminal case. No reference was made as to an investigative report.
Termination
[19] That same day, Mr. Merritt was called to meet with Mr. Crosby at the Paris facility. Mr. Crosby says he raised a concern regarding an employee who was involved in Mr. Merritt’s personal legal situation. Mr. Merritt responded by again saying no employees were involved in the criminal charges.
[20] Mr. Merritt was fired. Mr. Crosby, in his affidavit sworn September 16, 2015, states:
I advised the plaintiff that he was being terminated for cause based on his conduct, including but not limited to, his failure to tell me the whole truth, the extensive warnings and suspensions he had received for his past conduct, and the impact his criminal charges had on Tigercat Industries in general and on his fellow employees.
[21] As before, no investigative report was generated. Further, a written notice of termination, including reasons, was not delivered to Mr. Merritt, which is unusual given the size of the company, and the fact it had a discipline policy as set out in the Employee Policy Handbook.
DISCUSSION AND ANALYSIS
(i) Summary Judgment – Rule 20
[22] The relevant portions of Rule 20 in this proceeding are as follows:
WHERE AVAILABLE
20.01 (1) To plaintiff – A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
(3) To defendant – A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
EVIDENCE ON MOTION
20.02 (1) An affidavit for us on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
(2) In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
DISPOSITION OF MOTION
20.04
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;
(2.1) Powers – In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[23] The importance of Rule 20.02 cannot be overstated. Despite the culture shift in summary judgment motions, as next discussed, the evidentiary requirements have not changed. As Henry J. stated in Pizza Pizza Ltd. v. Gillespie (1990), 1990 CanLII 4023 (ON SC), 75 O.R. (2d) 225 (Ont. Gen. Div.), at pp. 237-238, parties are required to “put their best foot forward”. A responding party is prohibited from saying “more and better evidence will (or may) be available at trial”. See, also: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4th) 257 (Ont. C.A.).
(ii) Summary Judgment - Principles
[24] The principles relating to Rule 20.04 changed dramatically as a result of Hyrniak v. Mauldin, 2014 SCC 7. In a refreshing decision, Karakatsanis J. provided helpful direction for the motions judge. The following is a summary of the relevant considerations as they apply to this case:
[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[56] While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focussing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is “requir[ed]” as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers — and the purpose of the amendments — would be frustrated.
[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.
[58] This inquiry into the interest of justice is, by its nature, comparative. Proportionality is assessed in relation to the full trial. It may require the motion judge to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial. This would involve a comparison of, among other things, the cost and speed of both procedures. (Although summary judgment may be expensive and time consuming, as in this case, a trial may be even more expensive and slower.) It may also involve a comparison of the evidence that will be available at trial and on the motion as well as the opportunity to fairly evaluate it. (Even if the evidence available on the motion is limited, there may be no reason to think better evidence would be available at trial.)
[59] In practice, whether it is against the “interest of justice” to use the new fact-finding powers will often coincide with whether there is a “genuine issue requiring a trial”. It is logical that, when the use of the new powers would enable a judge to fairly and justly adjudicate a claim, it will generally not be against the interest of justice to do so. What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure.
[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[67] Inquiring first as to whether the use of the powers under Rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution. As well, by first determining the consequences of using the new powers, the benefit of their use is clearer. This will assist in determining whether it is in the interest of justice that they be exercised only at trial.
[25] The onus is on the plaintiff to establish that there is no triable issue with respect to its claim and on the defendants, in a similar fashion, regarding Mr. Crosby. However, it is well settled that the onus is on the employer to provide proof as to termination for cause and that the employee did not mitigate his loss.
[26] A straightforward claim for wrongful dismissal without cause is appropriate for summary judgment. See: Arnone v. Best Theratroncis Ltd., 2015 ONCA 63, at para. 12. Summary judgments may also be used to determine whether termination was for cause, depending on the evidentiary record. See: Asqari v. 975866 Ontario Ltd., 2015 ONSC 7508, at paras. 2-4; and Lewis v. Ontario Plymouth Chrysler Ltd., 2001 CanLII 28306 (Ont. S.C.J.), at para. 19. Any determination must accord with the Hryniak principles.
(iii) Issues in This Case
[27] The issues raised in the pleadings and the factums and submissions of counsel pertain to:
(a) whether termination was for cause;
(b) reasonable notice period;
(c) calculation of damages;
(d) mitigation; and
(e) claim against Mr. Crosby.
(iv) Genuine Issues Requiring a Trial
[28] For the reasons that follow, I conclude there are no genuine issues requiring a trial. It is assumed the parties have presented all relevant evidence. On this evidentiary record, I am confident as to findings of fact and the applicable principles of law that apply. Just because an employer asserts just cause does not make it a genuine issue. I conclude it is not.
[29] A trial is not required. The goal of proportionate, cost-effective and timely dispute resolution is best achieved by summary judgment in this case.
(v) Termination
[30] Tigercat’s position for terminating Mr. Merritt for cause is based on the criminal charges and reputational harm, dishonesty and the cumulative discipline record.
(a) Criminal Charges and Reputational Harm
[31] On February 5, 2015, Mr. Merritt was arrested and charged with two counts of sexual assault against minors. Counsel for Mr. Merritt reports the trial is scheduled for September 2016. No evidence was tendered regarding these criminal allegations. It is simply referred to as off duty conduct in that the events did not occur in the workplace and did not involve other employees. Tigercat did not conduct any independent investigation regarding the criminal allegations. Mr. Crosby asked Mr. Merritt about the charges at their meeting on February 6, 2015. Mr. Merritt declined to provide any information, as was his right.
[32] Criminal charges alone, for matters outside of employment, cannot constitute just cause. See: Backman v. Hyundai Auto Canada Inc., 1990 CanLII 4087 (NSSC); and Lewis v. Ontario Plymouth Chrysler Ltd., supra. In Regina v. Arthurs; Ex Parte Port Arthur Shipping Co., [1947] 2 O.R. 49, at p. 55, Schroeder J.A. described just cause as follows:
If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct imcompatible [sic] with his duties, or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.
[33] Improper conduct of an employee while not at work can only form grounds for termination with cause in limited situations. There must be a justifiable connection to the employer or the nature of employment. Examples referred to by counsel for Tigercat included:
(i) Kelly v. Linamor Corp. [2005] O.J. No. 4899 (Ont. S.C.J.). A management employee was charged with possession of child pornography. Employee dismissed. Local media publicity. Employee plead guilty. Concern for employer’s good reputation in the community and the entitlement to take reasonable steps to protect such a reputation.
(ii) Harrop v. Markham Stouffville Hospital, 1995 CanLII 7295 (Ont. S.C.J.). A psychiatric nurse developed a relationship with a patient. Finding of professional misconduct by College of Nurses. Conduct considered as inconsistent with her position, jeopardized treatment of patient and a breach of the standards of her employment.
(iii) Whitehouse v. RBC Dominion Securities Inc., 2006 ABQB 372. An investment advisor brought a prostitute to his office after hours. Dispute arose over fee. Prostitute left but later contacted other employees and managers as to her unpaid fee. Prior incidents involving prostitutes at office identified. Code of conduct breached by senior employee. Risk of client and corporate confidentiality breach. Potential for impact on working relationships in office. Risk for damage to business reputation removed by immediate dismissal.
[34] Counsel also referred to two arbitration cases. In Millhave Fibres Ltd. v. Oil, Chemical & Atomic Workers Int’l Union, Local 9-670, [1967] O.L.A.A. No. 4, the majority on the panel addressed conduct in paras. 19 and 20 as follows:
19 There are a number of arbitration cases which deal with disciplinary matters arising out of the conduct of an employee at a time when he is not in the Plant. Generally speaking, it is clear that the right of management to discharge an employee for conduct away from the Plant, depends on the effect of that conduct on Plant operations.
20 In other words, if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the Company to show that:
(1) the conduct of the grievor harms the Company’s reputation or product
(2) the grievor’s behaviour renders the employee unable to perform his duties satisfactory
(3) the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with him
(4) the grievor has been guilty of a serious breach of the Criminal Code and thus rendering his conduct injurious to the general reputation of the Company and its employees
(5) places difficulty in the way of the Company properly carrying out its function of efficiently managing its Works and efficiently directing its working forces.
See, also: Ontario Public Service Employees Union v. Ontario (Ministry of Natural Resources), [2008] O.G.S.B.A. No. 102, at paras. 140-141.
[35] The principles are correctly stated. The cases, however, are not comparable. Mr. Merritt was a general labourer, one of several hundred at Tigercat. He was not a manager, professional or senior employee.
[36] As in Asqari, Tigercat has not tendered any evidence to support its position. No independent investigation was conducted. No reports were generated. The only knowledge management has is that Mr. Merritt was charged. That is insufficient to support dismissal for cause.
[37] The criminal charges are not associated with Mr. Merritt’s employment and do not involve other employees.
[38] There is no evidence as to damage, or potential damage, to Tigercat’s reputation. Mr. Crosby speaks only as to his “concern” given the nature of Mr. Merritt’s charges, a bald allegation at best. Yet, in his affidavit, Mr. Crosby went on to speak about Mr. Merritt returning to his position on February 23, 2015. Allowing such to occur, in my view, renders any concern meaningless.
[39] The only evidence tendered by Tigercat is with respect to an unidentified employee. This offends the rule as to “best evidence”, and is not compelling, having regard to Rule 20.02 (1). Mr. Crosby mistakenly refers to this employee as being involved in the criminal case. The employee’s handwritten note says otherwise. Assuming this employee’s representation was correct, Tigercat had a duty to accommodate her and Mr. Merritt. Dismissal was not the answer.
[40] Tigercat has not put its best foot forward. It has not complied with Rule 20.02 (2) on this aspect of the case.
(b) Dishonesty
[41] Tigercat takes the position Mr. Merritt was dishonest in his interactions with management following arrest. There are said to be two components:
(i) refusal to provide information regarding the arrest, at the meeting on February 6, 2015; and
(ii) failure to raise concerns or objections about working at the Cambridge plant, at the meeting on February 23, 2015.
[42] Dishonesty is a serious allegation. The test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship, whether the misconduct is incompatible
with the fundamental terms of the employment relationship. See: McKinley v. BC Tel, 2001 SCC 38, at para. 48; and Dowling v. Ontario (Workplace Safety and Insurance Board), 2004 CanLII 43692 (ON CA), [2004] O.J. No. 4812 (Ont. C.A.), at 49. As noted in Dowling, the sanction must be proportional.
[43] As before, there is no evidence to support Tigercat’s position. Mr. Merritt was under no obligation to disclose the criminal allegations. At the time, the investigation was ongoing and he had been charged. Mr. Merritt is entitled to the presumption of innocence and the right to silence. An employee cannot be compelled to discuss the criminal allegations as any disclosure to an employer could easily be forwarded to the police.
[44] Mr. Merritt did say the charges did not involve anyone at Tigercat. There is no evidence to the contrary. It cannot be said Mr. Merritt was dishonest in this regard.
[45] As to the second concern, the unidentified employee refers to a prior unrelated matter. There is no evidence to suggest Mr. Merritt knew that individual was employed at the Cambridge plant prior to him being transferred there on February 23, 2015. Regardless, this is hardly a complaint justifying the dismissal of a labourer. Both employees could have been accommodated given the size of the business operations.
[46] Tigercat’s complaint as to dishonesty fails.
(c) Discipline Record
[47] There are several recorded discipline matters. These workplace matters do not involve inappropriate behaviour and are not connected to the criminal charges.
[48] A cumulative discipline record, in the appropriate circumstances, can support termination for just cause. See: Daley v. Depco International Inc., [2004] O.J. No. 2675 (Ont. S.C.J.), at paras. 25-28; and Chopra v. Easy Plastic Containers Ltd., 2014 ONSC 3666, at paras. 95-99. However, as previously stated, the sanction must be proportional.
[49] Termination on Mr. Merritt’s discipline record is clearly improper. It bears no resemblance to the fact situations in other cases and is not proportionate to the incidents.
[50] For the purpose of this analysis, I will assume the first complaint of falsely calling in sick is correct (although there is an evidentiary dispute). The second incident involved an unsecured load; however, such also resulted from an operations deficiency, hardly the fault of Mr. Merritt. The third incident also dealt with an unsecured loan where the report indicates Mr. Merritt would be replaced as a driver and assigned to another position. Yet, Tigercat continued to assign Mr. Merritt as a driver and there was a fourth incident. This was resolved by taking Mr. Merritt off the mail run and assigning him to another position.
[51] Clearly, any issues regarding discipline matters were resolved.
(d) Summary
[52] On this evidentiary record, it is clear Tigercat terminated Mr. Merritt due to the criminal charges even though no information was known regarding the allegations. Other matters raised are simply at attempt to justify their decision. Tigercat has failed to demonstrate just cause. At best, it hopes to have evidence at trial. But, they have had a year since termination to gather that evidence. As Henry J. said in Pizza Pizza “the time is now” to present their case.
[53] The evidence on this motion is sufficient to resolve the dispute regarding termination. Would a trial, or even oral evidence pursuant to Rule 20.04 (2.2), better assist in determining the facts? I conclude it would not. There is no genuine issue regarding termination that requires a trial.
(vi) Reasonable Notice
[54] Given the aforementioned conclusion, the primary dispute is in calculating the appropriate reasonable notice when Mr. Merritt was dismissed without cause. Determination of this issue is well suited to summary judgment.
(a) Record of Employment
[55] The first step is to determine the length of service. Mr. Merritt claims it is 17 years, from 1998 to 2015. Tigercat disagrees, saying employment was 12 years and 5 months, from 2002 to 2015.
[56] The dispute is with the time period from 1998 to 2002. Mr. Merritt commenced employment on April 18, 1998. He was terminated or laid off on December 8, 2000 but rehired on September 30, 2002. Final termination was on February 23, 2015.
[57] The position advanced on behalf of Mr. Merritt is that a gap in employment (2000-2002) ought not be used to reduce the length of service. Reference was made to Brien v. Niagara Motors Ltd., 2009 ONCA 887, at para. 2, for this principle.
[58] The gap in employment in Brien resulted from the employee leaving to have a child. She was invited back two years later even though she was not on an official maternity leave. The principle applies in this case, but only for the period in 2009, a lay off from shortage of work, and the two week leave of absence in February 2015.
[59] Mr. Merritt was terminated in 2000. He acknowledged this fact in cross-examination. Yet, the ROE produced by Tigercat and dated December 14, 2000 refers to Code A as the reason for issuing the notice. Code A is shortage of work. Further, the ROE indicates the expected date of recall as “unknown”. Mr. Merritt cannot recall if he received any severance. If not, the limitation period has long expired.
[60] Regardless, Mr. Merritt’s employment came to an end in 2000. He was re-hired in 2002. This intervening period, in my view, cannot be considered a gap. Accordingly, I conclude the commencement date is September 2002.
[61] There is a minor issue as to whether termination occurred on February 6, 2015, with the purported request for resignation, or February 23, 2015, when actually fired. Determination of this dispute would have no impact on the amount of reasonable notice. In the circumstances, I choose February 23, 2015 as the termination date.
[62] In result, I find that Mr. Merritt was employed by Tigercat for twelve years and five months.
(b) Bardol Factors
[63] Determination of a reasonable notice period must take into account the facts of the case and the Bardol factors, namely the character of the employment, length of service, age of the employee, and the availability of similar employment. See: Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC), [1960] 24 D.L.R. (2d) 140 (Ont. H.C.J.).
[64] Mr. Merritt was 66 years of age at the time of termination. He was employed as a labourer for twelve years and five months. Given his age, employment skills and the economy, it is highly unlikely Mr. Merritt will obtain similar employment. This is of particular importance given his former salary of $50,000, a higher rate of remuneration for a labourer.
(c) Notice Period
[65] Counsel referred to a number of prior decisions to assist in determining a reasonable notice period.
[66] The “rule of thumb” approach of one month notice for every year worked was rejected in Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 168 D.L.R. (4th) 270 (Ont. C.A.). The Bardol and other relevant factors must be weighed.
[67] Mr. Merritt was not in a managerial position. However, any resultant lower notice period is offset by his age. Mr. Merritt says he intended on working to age 70 and that he has no health problems impacting employment. His age will make it difficult to obtain employment as he will be competing with much younger labourers.
[68] Having regard to the Bardol factors and comparable caselaw, I find that the appropriate notice period is 10 months.
(vii) Calculating Damages
[69] Counsel have used $50,000 as the income level for Mr. Merritt from his employment at Tigercat. Ten months’ notice results in a damage award of $41,666.66.
[70] Mr. Merritt earned approximately $4,300 in the notice period as a casual farm labourer. I would not deduct this amount from the damage award as Mr. Merritt’s income in 2014, according to the Tigercat T4 was $54,826. The loss of benefits is not a consideration, given termination early in the year and no evidence as to any loss.
(viii) Mitigation
[71] Tigercat complains as to the mitigation efforts of Mr. Merritt, saying a trial is required. I disagree for several reasons. First, the onus is on Tigercat to establish Mr. Merritt’s lack of effort in seeking alternative employment. See: Michaels v. Red Deer College, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324 (S.C.C.). But Tigercat does not tender any evidence to support its position. Second, Tigercat provided no assistance to Mr. Merritt in his job search. See: Maxwell v. United Rentals, 2015 ONSC 2580; and Drysdale v. Panasonic Canada Inc., 2015 ONSC 6878. Thirdly, as previously stated, alternate employment at age 66 is highly unlikely.
[72] I conclude Mr. Merritt has made reasonable efforts to mitigate his loss. Accordingly, no reduction in the damage award is appropriate.
(ix) Claim Against Mr. Crosby
[73] Mr. Merritt, in his statement of claim, has sued Mr. Crosby on the basis of intentional intereference with economic relations and inducing a breach of contract.
[74] In his motion, Mr. Crosby seeks summary judgment dismissing the action against Mr. Crosby. In submissions, counsel for Mr. Merritt advised that if Mr. Merritt’s motion was granted, the court could grant or dismiss Mr. Crosby’s motion.
[75] In my view, there is no merit in the claim against Mr. Crosby. No caselaw was provided to support a claim based on intentional interference with economic relations and/or inducing a breach of contract within an action for wrongful dismissal. These are separate torts and while there may be some overlap in terms of intention, I conclude this claim cannot survive.
[76] Mr. Crosby, in terminating Mr. Merritt, was acting in his capacity as an officer and employee of Tigercat. Employment matters were part of his duties. There is no evidence to suggest Mr. Crosby acted outside the scope of his employment.
[77] These torts require an intent to injure and procure a breach of contract. Interference with economic relations must be unlawful. See Drouillard v. Cogeco Cable Inc. (2007), 2007 ONCA 322, 86 O.R. (3d) 431 (Ont. C.A.). There is no evidentiary foundation for these torts in this case. While I have determined Tigercat did not have just cause to terminate Mr. Merritt, that finding does not support this claim. Simply put, Mr. Crosby had the right to be wrong without attracting personal liability.
[78] Further, if Mr. Merritt has a complaint as to the manner of termination, the claim for Wallace damages is against Tigercat, not Mr. Crosby.
[79] I decline to find the claim against Mr. Crosby was presented only on the basis of litigation strategy. I do find there is no merit to the claim and it must be summarily dismissed.
(x) Summary
[80] In result, both motions are granted, in part, as follows:
(a) summary judgment in favour of Mr. Merritt against Tigercat for damages for wrongful dismissal in the amount of $41,666.66;
(b) summary judgment dismissing the action as against Mr. Crosby.
[81] If the parties are unable to agree on the issues of prejudgment interest and/or costs, counsel are directed to exchange brief written submissions and deliver same to my chambers in Kitchener within 30 days.
________________________________ D.J. Gordon J.
Released: February 19, 2016
CITATION: Merritt v. Tigercat Industries, 2016 ONSC 1214
COURT FILE NO.: CV-15-130 SR
DATE: 2016-02-19
BETWEEN:
Keith Gordon Merritt
Plaintiff
– and –
Tigercat Industries Inc. and Steve Crosby
Defendants
REASONS FOR DECISION
D.J. Gordon J.
Released: February 19, 2016
lr