CITATION: Wood v. Fred Deeley Imports Ltd., 2016 ONSC 1412
COURT FILE NO.: CV-15-533254
DATE: 20160419
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULIA WOOD
Plaintiff/Moving Party
– and –
FRED DEELEY IMPORTS LTD.
Defendant/Responding Party
Marc Kitay, for the Plaintiff/Moving Party
Abdul-Basit Khan, for the Defendant/Responding Party
HEARD: February 25, 2016
G. DOW, J
REASONS FOR DECISION
[1] The plaintiff, Julia Wood seeks summary judgment arising from her employment with the defendant being terminated in writing on May 1, 2015. The defendant opposes this motion on the basis the employment relationship, including provision for termination, is governed by the Offer of Employment/Employment Contract letter dated April 17, 2006 (actually 2007) or “April 17, 2007 letter” which has not only been complied with but exceeded.
Background
[2] The parties agree the proper name of the defendant is actually Fred Deeley Imports Ltd. and consent to an order amending the title of proceeding in this regard. As a result, this is so ordered.
[3] The plaintiff is currently 49 years old. She was offered employment with the defendant in a telephone conversation on April 17, 2007. Her evidence, adopted by and relied upon by the defendant is that she:
a) verbally accepted the position;
b) subsequently received an email with the written Offer of Employment;
c) started work on April 23, 2007 as referenced in the April 17, 2007 letter;
d) signed the April 17, 2007 letter April 24, 2007 using her (presumably) maiden name.
[4] This evidence is contained in paragraphs 21 through 24 inclusive of the plaintiff’s affidavit in support of this motion.
[5] The email which accompanied the letter was not produced by either party and plaintiff’s counsel correctly submits the defendant’s evidence on this point that it was forwarded and received before April 23, 2007 is hearsay and ought not to be relied on for its truth. I choose to accept the letter was received by the plaintiff before she started working on April 23, 2007 given it includes a commencement date for employment and the other usual requisite details of the plaintiff’s employment which would have been the subject of the telephone conversation and permitted the plaintiff to accept the Offer of Employment and begin attending work on April 23, 2007.
[6] The April 17, 2007 letter provided that the defendant was “entitled to terminate your employment at any time without cause by providing you with the two weeks Notice of Termination or pay in lieu thereof for each completed or partial year of employment with the company.” Further in the paragraph the employer states the “payments and notice provided for in this paragraph are inclusive of your entitlements to notice, pay in lieu of notice and severance pay pursuant to the Employment Standards Act, 2000.
[7] In or about February, 2015 the defendant, whose business had been to exclusively distribute Harley-Davidson products in Canada, sold its assets to Harley Davidson Motorcycle Company. On May 1, 2015, the defendant notified the plaintiff in writing that she was being terminated effective August 4, 2015 or, as it is known to be, working notice. There was also reference to a process whereby an employee such as the plaintiff could apply for a position available in the new organization. On June 2, 2015, the defendant notified the plaintiff in writing she would not be offered a position and was offered her full compensation for an additional eight weeks beyond August 4, 2015 including a pro-rated annual bonus, vacation pay and out placement services.
[8] The plaintiff’s base income had risen from $59,000 when she commenced employment in 2007 to $81,953 at the time of her termination. She was also entitled to a bonus of up to 14 percent of her base income which averaged about $8,800 in the four years preceding her termination. She was entitled to a matching RRSP contribution of up to nine percent of her base salary which amounted to $7,196 in 2014 and a benefits plan, the value of which was calculated to be $538.55 per month at the time of termination.
[9] The plaintiff utilized the out placement services and filed an impressive list of contacting 158 potential employers or positions between May 15, 2015 until November 19, 2015. Of these, there were two significant prospects, a marketing position with Ceridian that the plaintiff concluded was “too far; job not right fit” and an event planner position with Unitron that the plaintiff concluded “salary too low”.
[10] In the plaintiff’s supplemental affidavit sworn February 17, 2016, she continues to be unemployed.
[11] The June 2, 2015 letter also offered an additional payment of $12,470 which required her to execute a final release (by my calculation, this is an additional seven weeks of remuneration). She declined to do so and the amount has not been paid to her. However, defence counsel advises that it will be paid to her regardless of the outcome in this motion.
[12] In summary, it appears the plaintiff has received approximately 13 weeks of working notice (to August 4, 2015) plus eight weeks of additional notice (to September 29, 2015 or 21 weeks’ notice). This is greater than the provision in the April 17, 2007 letter of two weeks’ notice for each completed or partial year of employment which I calculate to be 18 weeks.
Issues
[13] This matter requires me to decide whether the April 17, 2007 letter applies and, if not, what would be the appropriate notice at common law. The parties have advised it will be able to calculate the amount owed once the requisite notice period is established.
Issue – Enforceability of Employment Agreement
[14] The first argument by the plaintiff was that the onus was on the defendant to prove delivery of the Offer of Employment in advance of when employment started because, if the employment contract was not entered into until after the plaintiff had started work, fresh consideration was required. As noted above, I have concluded the April 17, 2007 letter was received by the plaintiff prior to her commencing work on April 23, 2007. The second argument made by the plaintiff was that the termination clause was unenforceable because of its failure to specifically set out what constituted pay in lieu of notice and particularly the ongoing payment of premiums for the plaintiff’s benefits.
[15] However, there is no evidence that the defendant did not continue to make the requisite premium payments on behalf of the plaintiff. For example, there is no evidence that the plaintiff submitted a claim during her working notice which was rejected on the basis she no longer had coverage.
[16] The plaintiff attempted to rely on decisions such as that of Justice Leach in Stevens v. Sifton Properties Ltd., 2012 ONSC 5508 where, at paragraph 65, “employers should be provided with incentive to ensure that their employment contracts comply with all aspects of the employment standards legislation, including provision of adequate notice (or pay in lieu thereof) and mandated benefit continuation”.
[17] However, as argued by the defendant, its termination clause not only provides payment in accordance with the Employment Standards Act, 2000, S.O. 2000, c. 41, but, on the basis of two weeks per year of service payment is in excess of that legislation which, at section 57, limits recovery to eight weeks if the period of employment is eight years or more.
[18] As noted by the defendant, the Court of Appeal has considered and accepted employment contracts which set out termination provisions that provide or comply with legislated minimum standards (Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA), [2005] O.J. No. 3995 (ONCA).
[19] As a result, I would conclude this issue in favour of the defendant.
Issue – Notice
[20] This requires an evaluation of the character of the plaintiff’s employment, that is, the length of service, the age of the employee, the availability of similar employment and regard to the experience, training and qualifications of the employee.
[21] In this regard, the plaintiff categorized her position as clerical in nature although at a high income level and portrayed her age as making it more difficult to find alternative employment. However, in an attempt to identify comparative situations, five examples were provided where the years of service ranged from 8.5 to 10 years and the notice awarded varied from 8.5 to 11 months. The plaintiff sought 12 months in the circumstances.
[22] In contrast, the defendant noted two examples where the employment was for seven years and the notice awarded 7.5 and 8 months. The issue of mitigation was raised on the basis of the two prospects for which there was no additional detail beyond that noted above that the prospective jobs were either too far or too low paying to suggest six months as the appropriate notice period.
[23] In my view, and in the event my conclusion above is incorrect, I have found the appropriate notice period at common law to be thirty-nine weeks.
Costs
[24] Counsel for the plaintiff submitted a Cost Outline in the amount of $14,701.06 on a partial indemnity basis inclusive of fees, HST and disbursements. Counsel for the defendant failed to provide a Cost Outline contrary to the obligation to do so under Rule 57.01(6). However, counsel for the defendant acknowledged his Cost Outline would likely have exceeded that of plaintiff’s counsel in the circumstances.
[25] While the defendant has been successful, in my view, this is an appropriate situation to exercise my discretion under section 131 of the Courts of Justice Act, R.S.O. 1990 c.C. 43 and Rule 57 and award no costs.
Mr. Justice G. Dow
Released: April 19, 2016
CITATION: Wood v. Fred Deeley Imports Ltd., 2016 ONSC 1412
COURT FILE NO.: CV-15-533254
DATE: 20160419
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JULIA WOOD
Plaintiff/Moving Party
– and –
FRED DEELEY IMPORTS LTD.
Defendant/Responding Party
REASONS FOR DECISION
Mr. Justice G. Dow
Released: April 19, 2016