Nielsen v. Sheridan Chevrolet Cadillac Ltd., 2016 ONSC 1843

COURT FILE NO.: CV-10-00396151

DATE: 20160316

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christopher Nielsen

Plaintiff

– and –

Sheridan Chevrolet Cadillac Ltd., Gazarek Realty Holdings Ltd., Lesley Gazarek and The Pickering Auto Mall Ltd.

Defendants

N. Foley, for the Plaintiff

K. Armagon, for the Defendants

HEARD: September 28 and 30, 2015 and October 1 and 2, 2015

REASONS FOR DECISION

CAROLE J. BROWN, J.

[1] The plaintiff, Christopher Nielsen, brings this wrongful dismissal action as against the defendants, Sheridan Chevrolet Cadillac Ltd. ("Sheridan"), Gazarek Realty Holdings Ltd. ("Gazarek Realty"), Lesley Gazarek and The Pickering Auto Mall Ltd. carrying on business as Saturn Saab of Pickering ("Saturn Saab" or "Pickering"), claiming general damages including pay in lieu of notice in the amount of $55,000 based on 12 months’ notice; outstanding bonuses and unpaid salary; unpaid benefits, aggravated and punitive damages in the amount of $100,000 and damages for intentional infliction of mental suffering in the amount of $25,000.

[2] As both counsel conceded, this action takes place in the context of the widescale closures made by General Motors of Canada ("GM") in 2009. At that time, the defendants, Sheridan and Pickering were notified by GM that it would no longer be supplying vehicles to those dealerships, which ultimately forced the dealerships to close.

The Positions of the Parties

The Position of the Plaintiff

[3] It is the position of the plaintiff that he was induced to leave school and join Sheridan where he remained, working first as a junior service advisor, then as a service adviser. In 2008, the plaintiff went to work for Saturn Saab until October of 2009, when he was terminated at the age of 27 years. It is his position that this termination was wrongful. The plaintiff maintains that he was a good worker, with an excellent reputation. It is his position that he was convinced to move from Sheridan to Saturn Saab and was assured that this was the same employer.

[4] The plaintiff maintains that his last year at Saturn Saab was marked by bullying, intimidation and false accusations of wrongdoing including fraudulent activity, which is characterized in the statement of claim as theft, in an attempt to make him resign. He was ultimately terminated in October of 2009, at a time when his average income was approximately $56,000 per year.

[5] It is the position of the plaintiff that the three named corporations are common employers, such that all three are liable for his wrongful dismissal.

[6] It is the plaintiff's position that, after termination, he did not begin full-time employment until March of 2012.

The Position of the Defendants

[7] It is the position of the defendants that this case must be seen in the context of the widespread GM dealership closures resulting from GM's announcement that they would no longer provide vehicles to those dealerships. This included both Sheridan and Saturn Saab, which were both forced to close as a result. The employees of those dealerships lost employment, including Mr. Nielsen.

[8] It is the position of the defendants that Mr. Nielsen was taken by Sheridan as a high school student with virtually no experience in the working world, was given training and mentorship such that he was subsequently able to assume the position of service advisor, earning a good income. He was neither induced nor tricked into joining Sheridan. It is the position of the defendants that Mr. Nielsen was rightly accused of fraud, but not forced to resign. It is their position that he acknowledged his mistake and made a payment plan as a result of his errors.

[9] It is the position of the defendants that the plaintiff was employed by Saturn Saab, his last employer, from which he received his pay cheques and ultimately his Record of Employment ("ROE"). It is their position that the three named corporations are not sufficiently interconnected to make Gazarek Realty liable to the plaintiff. It is their position that Sheridan and Saturn Saab were separate, independently owned and operated dealerships, and Gazarek Realty, which owned the land on which each of the dealerships was located, leased the respective properties to the dealerships at fair market value. They maintain that, in the circumstances of this case, the common employer doctrine does not apply.

[10] The defendants maintain that the plaintiff has failed to fully mitigate his damages. It is their position that Saturn Saab, at all times, kept its employees apprised of the situation with the GM dealership and that it would likely be required to close by the end of the year. It is their position that as a result, Mr. Nielsen decided to seek and ultimately obtained alternate employment with Sunnybrook Health Sciences Center and, between June of 2009 and October of 2010, earned approximately the amount of income that he would have earned at Saturn Saab. They maintain that he made no reasonable efforts to obtain full-time employment following the termination and, accordingly, failed to mitigate his damages.

The Evidence

The Plaintiff’s Witnesses

Christopher Nielsen

[11] The plaintiff, Christopher Nielsen ("the plaintiff" or "Mr. Nielsen") was 32 years old at the time of trial and lived in Oshawa. He is married with one child who, at the time of trial, was 18 months old.

[12] He was raised in Pickering by his parents. His mother works for the Ontario government and his father works for Sunnybrook Health Sciences Center and does contracting as a side business.

[13] The plaintiff is currently employed at Sunnybrook Health Sciences Center ("Sunnybrook") in the Environmental Services Department. He holds the position of Supervisor of Environmental Services Partner. He looks after the cleaning staff, patient transportation department, linen and waste department and the grounds department. He supervises 110 staff. His annual income is approximately $70,000.

[14] His position with Sunnybrook is full-time, working from 4 PM to midnight five days per week. He commenced working at Sunnybrook on June 17, 2009 on a part-time basis, while he was still working at the defendant dealership, Saturn Saab of Pickering, and began to work full time at Sunnybrook in 2012.

[15] As regards his education, he testified that at high school, he was doing an automotive co-op program to become a mechanic. Summer jobs included working with his father doing construction for his contracting company and working at Sheridan as a lube technician. Following graduation from high school, he attended Centennial College for the mechanics apprenticeship program. He only finished the first year and subsequently, while doing his co-op at the dealership, was approached by the service manager at the time, Peter White, who told him that there was a better opportunity as the junior service advisor to the front desk at the dealership. The plaintiff left the mechanics program in 2000, and became a junior service advisor at Sheridan. He progressed to the position of service advisor.

[16] He testified that he reported to Mr. Gazarek at Sheridan. He subsequently conceded that as a service advisor, he actually reported directly to the service manager, who at the time was Peter White, and thereafter to Bill Rouse.

[17] In 2008, he was asked by Gerald Gazarek and Bill Rouse to attend a meeting. He testified that Mr. Gazarek explained that there would be further opportunities for him to advance his career at Saturn Saab. He testified that they had reassured him that he had potential and they felt that Mr. Waterman could mentor him so that he could possibly be a service manager someday. They explained that at a smaller dealership like Saturn Saab, there would be more opportunity to mentor him and help him to progress in his career. It was further the plaintiff's evidence that Saturn Saab was having issues in their service department and he was asked to go to help the dealership bring up the level of the service department. He stated that it was quite common to have employees move back and forth from Sheridan to Saturn.

[18] He stated that he was uneasy about moving to Saturn Saab, as he had been at Sheridan for so long, had a good customer base, knew the people and was comfortable there. He further testified that he was concerned about his income and he also wanted to make sure that his seniority at Sheridan would be at least recognized at Saturn Saab. They suggested that he go to Saturn Saab for an interview.

[19] He testified that at the interview with Ms. Gazarek, she led him to believe that his income would increase and that his seniority at Sheridan would be honoured at Saturn Saab. He was also entitled to a bonus structure which is tabulated at the end of each month based on each service advisor's overall service sales for the month and a customer satisfaction bonus, based on the dealership's customer satisfaction results in comparison to the district results.

[20] The plaintiff produced in evidence several monthly breakdowns of total service sales at Saturn, with bonus calculations. He testified that on eight occasions, it appeared that he was not properly paid for his monthly bonus. As regards any issues with the bonus, he testified that he would have spoken to the service manager, Rick Waterman, who would look into it. He testified that on one occasion, he believed that he received a reimbursement cheque regarding a bonus error after complaining about it. He produced a summary breakdown of the alleged sales bonus shortages from December 2008 to July 2009 which amounted to $2,179.26. No other evidence in the form of pay records, receipts or cheques was adduced to assist in determining whether the alleged errors were indeed errors and, if so, whether they were corrected.

[21] He maintained that he reported to Mr. Gazarek when he went to Saturn, as well as to Ms. Gazarek. In cross-examination, he testified that he understood that Lesley Gazarek was the president of Saturn Saab and conceded that he directly reported to Rick Waterman, the service manager, who monitored his employment on a daily basis.

[22] When asked in cross-examination whether, in 2008 or 2009, he had one-on-one or group meetings with Mr. Gazarek, he stated that he did not sit down individually with him and had no individual interaction with him at Saturn, although he recalled Mr. Gazarek coming to staff meetings from time to time. He further acknowledged that Rick Waterman would report to Ms. Gazarek or Mr. Gazarek. He stated that he did not have conversations with Ms. Gazarek, or that there was minimal communication with her, and that everything was usually brought to them through the service manager. He stated that they did not bring things to Ms. Gazarek, as other employees who had done so were no longer with the dealership.

[23] He stated that the employees did not generally get a break during the day, or for lunch, as they were always called back to deal with customers or take care of other issues. He did not go on vacation often; he took perhaps one week of vacation during the course of the year.

[24] He testified that in 2009, he applied for a position at Sunnybrook as an Environmental Services Partner, which he described as a cleaner. His father also worked at Sunnybrook. The plaintiff was hired on June 17, 2009 for part-time employment. He was guaranteed 15 hours every two weeks, every other Saturday and Sunday. He testified that he applied at Sunnybrook in order to gain extra income to subsidize the income reduction that he experienced moving to Saturn.

[25] For his position with the Environmental Services Department, he was required to undergo training, including a two day in-class training course, as well as three days of hands-on training. As regards the hands-on training, he requested of Saturn that he be permitted to take three weekdays off in order to complete the training. His request was made on June 15, for training scheduled for June 17, 18 and 19, thus two days prior to his requested absence. He testified that he was denied these days off.

[26] The denial was confirmed in correspondence from Rick Waterman, Fixed Operations Manager, to Mr. Nielsen dated June 15, 2009, which stated as follows:

Your request for the following days off; June 17th, 18th and 19th has been reviewed and denied. As you are aware we already have one service consultant off on sick leave and our junior consultant is not ready for that coverage. I have a commitment on Wednesday morning from 8:30 to 10:30 out of the building.

You will need to try and work something out with your new employer to reschedule the hands on training as to not conflict with your full-time employment. We fortunately still have a business to run at this point in time and I will not jeopardize our customer service as long as the doors are open.

[27] It appears clear from that correspondence that the dealership had advised the employees of the impending issues with GM. This was confirmed by Mr. Nielsen who indicated that they were trying to keep the doors open with GM as well as looking for dealership opportunities.

[28] In cross-examination, Mr. Nielsen stated that, of the reasons given for the request being denied, he did not agree that the junior consultant could not provide full coverage duties for three days. He testified that at Sheridan, as a junior advisor, he would work alone on some of the evening and weekend shifts. He further maintained that, according to the letter, the junior consultant would not be alone other than two hours when Mr. Waterman was absent from the dealership on Wednesday. He maintained that Mr. Waterman, despite his other overall duties at the dealership, should have filled in for him for the three days in question, other than the two hours that he was scheduled to be away.

[29] The plaintiff initially denied in cross-examination that he had first requested the time off on June 15, two days before the requested leave. Despite being taken to his handwritten notes indicating that "On Monday, June 15 09, I told Rick W I would need those days off", he would not concede that he had requested the time off only two days prior to the requested leave, but believed he had made the request previously. He stated that he felt that Saturn Saab was being unreasonable in denying him the time off. He interpreted the refusal to grant the requested leave as part of what he alleged was Saturn Saab's attempt to have him resign from the dealership. He stated that while there was one worker off, he did not believe that junior consultants were unable to work on their own and he understood from the letter that Mr. Waterman was only away for part of one day, not all of the days he had requested for leave. When asked about Mr. Waterman filling in for him, despite his responsibilities as service manager, supervising all of the technicians and invoicing in the department, the plaintiff felt that it was unreasonable and maintained that it was common practice that Mr. Waterman would cover for others, despite the short notice.

[30] He commenced part-time employment with Sunnybrook on June 17, 2009, and took the above-mentioned training courses. In cross-examination, he was asked whether, following the correspondence with Mr. Waterman, he had ever been granted the leave he requested by Saturn Saab. He responded, first indicating that he had been granted leave, then that he could not recall. Further, he testified that he could not recall whether he went to work at Saturn Saab on June 17, 18 and 19, although he had no evidence to that effect. The evidence indicates that he did not.

[31] He denied, in cross-examination, that the reason that he applied to Sunnybrook for another job in 2009 was that he knew that Saturn Saab was having issues with GM and that the dealerships were closing. There is no evidence as to when he first applied to Sunnybrook, but he commenced work with Sunnybrook on June 17, 2009. The evidence indicates that the plight of GM dealerships in Canada was widespread knowledge from late 2008. He insisted that it was because he was earning less money with Saturn Saab and, by June, was being threatened and asked to resign. He stated that it was always his intention to remain at Saturn Saab or to work elsewhere if Saturn Saab was required to close the dealership. He maintained that the Sunnybrook job was only intended as a part-time job to supplement his income. He stated that he "was going to keep two jobs no matter what". However, in cross-examination, he stated that the only other position that he held from 2009 to 2012 was the construction work that he had with his father on a part-time basis. He stated that from the construction job, the only amount that he could verify, by a note produced in evidence, was income that he earned from his father’s construction business in June of 2010 in the amount of $4,500.

[32] He did concede in cross-examination that he, along with the other employees, was aware of the difficult position the dealerships were placed in by GM, and had been advised of this by the owner in meetings with the employees. He attempted to avoid answering further questions about Saturn and their precarious position. In cross-examination, he was asked whether other employees left for other positions in 2009. His memory was vague on many points, including this point. He would not, initially, acknowledge that other employees had left the dealerships, but stated that they had been terminated. He subsequently stated that no one else had left Saturn Saab due to the imminent closure, and ultimately stated that he did not know whether others had left the dealerships.

[33] He nevertheless stated that, at that time, his intention was to remain with the dealership if it remained open. In cross-examination, he conceded that the employees had been advised of the closure verbally, but that he had hoped that he would be able to remain, as he understood that Ms. Gazarek was seeking other possibilities for the dealership, including a dealership with Fiat and/or Daewoo. In her testimony, Ms. Gazarek stated that while she was looking for other dealerships, she had never approached Fiat or Daewoo and did not know where the plaintiff had gotten that information.

[34] In response to Mr. Waterman's correspondence of June 15 denying the requested leave, set forth at paragraph 26, the plaintiff's mother assisted him in writing a letter which was included in evidence. It is clear from that written response that he was fully aware of the situation as regards Saturn closing. He indicates that "all the employees at Saturn Saab Pickering have been given verbal notice that the dealership will be closing their doors as of December 31, 2009". He further states as follows "I have been a loyal employee for 10 years that [sic] I will remain with Saturn Saab Pickering until the end. But, equally, in light of the current circumstances and Saturn Saab Pickering's imminent closure, I need to seek alternative and additional employment to secure my future". He further states: "As you know I have been extremely fortunate in obtaining an opportunity to work with another company on a part-time basis, which will not conflict with my duties with Saturn Saab Pickering.… If my work performance during a six-month period demonstrates my ability and dedication, there is a possibility that I could obtain a full-time position. I explained this to you and also told you that it may require that I take some earned vacation days periodically (to meet occasional specific requirements), of the part-time employer." He further reiterated that he had requested, on June 15, 2009 to take June 17, 18 and 19 off for training sessions. He advised that "if I do not attend the training days I will lose this invaluable employment opportunity. In this economy I cannot afford to give up this new job". He noted that while he had no intention of resigning his position with Saturn Saab Pickering at that time, he would be taking the days off for training. He testified in examination-in-chief that his reference to full-time employment was that if the dealership was to close due to the issue with GM, the position with Sunnybrook may become full-time employment. The evidence indicates that he did not report to work at Saturn June 17-19, but did work those days at Sunnybrook.

[35] When asked about the reference in that letter to the possibility of obtaining full-time employment with Sunnybrook, he stated that they had been told about the dealership and the possibility that it may stay open with another dealership or as an independent dealership. He stated that if that did not work out, then he may be able to turn to Sunnybrook for a full-time job.

[36] In cross-examination, he stated that he did not understand the phrase that he had used in the correspondence "imminent closure" to mean closing soon. As regards his lack of understanding of the term "imminent closure" used in his letter to Ms. Gazarek, he testified in re-examination that in writing the letter, he told his mother what had happened at the dealership and she typed it out using her own language.

[37] Despite the wording of the letter, and the indication that "there is a possibility that I could obtain full-time employment" , he would not agree that the letter indicated that as Saturn Saab was closing, he needed to find a job and was fortunate enough to find one that may become a full-time position "if my work performance during a six-month period demonstrates my ability and dedication", as the letter states.

[38] Mr. Nielsen testified that during the time that he worked for Sheridan, Saturn Saab and Sunnybrook, he also did part-time work with his father in his construction business, which he had on the side, in addition to his employment with Sunnybrook. He testified that he had begun working with his father on a part-time basis from the age of 13 and continued to work with his father, again on a part-time basis, through the time of the trial.

[39] As regards the issue of repairs to his father's vehicle, the plaintiff testified that it was customary for service advisors' family members to be given discounts for service of their vehicles. When he was giving a discount to his family and friends, he would enter a code in the billing system in order to allocate a discount to family members. He stated that approval came after he wrote the work order, which went to Rick Waterman's desk. He stated that if there were any issues with a discount, Mr. Waterman would have approached him. Work orders written would normally be verified and approved through the supervisor, in this case Mr. Waterman. The work order was simply placed on Mr. Waterman's desk along with all of the other service orders for the day. He did not discuss the discounts given with Mr. Waterman. He stated that it was common that they did not have to seek approval before a discount was given. The discount was the same as for employees at Saturn Saab. He stated that it was something they always did and it was never questioned.

[40] He stated that as regards family members’ vehicles, service advisors would apply a discount on work or not charge for mechanical work if the mechanics would do the work during non-working hours. He further decided what labour would be charged (the labour rate at that time was $99 per hour) and, in the case of his father's vehicle, he charged no labour, despite the fact that the repairs were estimated to require 2 to 3 hours of labour. He further discounted by half the cost of parts required for the repairs to his father's vehicle.

[41] He stated that, following the repairs to his father's vehicle, he released the vehicle to his father without having his father pay for the repairs in the amount of $1,500. In examination in chief, he testified that, from 2000, taking payment over the phone was common practice and, as well, releasing customers' and family members' vehicles without payment was also common. He stated that his parents were having financial issues at that time, and could not pay. There was an invoice for Mr. Transmission for a rebuilt part used in his father's vehicle in the amount of $1,575 which was required for the vehicle, but which was not paid. When asked about this invoice in cross-examination, he stated that he spoke to Rick Waterman about this, but could not recall when. He thought it may have been when Mr. Waterman saw the work order which he put in. He subsequently indicated that he did not speak with anyone regarding the discount, but it was common that they would give such discounts and he did not feel that he needed to speak with anyone. He stated that if Mr. Waterman had an issue, he would have brought it to the plaintiff's attention.

[42] In cross-examination, he testified that he had made arrangements for installment payments with his parents to pay "a little bit" when they could start paying "until the bill is all settled up". He stated that this was quite common with customers and staff members, namely when they could pay it, they would do so. When asked who he expected would pay for the bills and the bill to Mr. Transmission, he stated that Saturn Saab would have paid. The evidence indicates that the bill remained outstanding for five months.

[43] The evidence indicates that the release of the vehicle without payment was not discovered until Mr. Transmission called Saturn to inquire about its outstanding invoice. He testified that thereafter, a payment plan was put in place, as evidenced by correspondence from Chris Nielsen, sent from his father's e-mail address on August 12 indicating payment of $250 in four installments through September 18, 2009, with a $500 payment made by Visa, signed by his father.

[44] Mr. Nielsen testified that he received correspondence from Lesley Gazarek on August 12, 2009 accusing him of fraud. The letter states as follows:

It has been brought to my attention that on April 9, 2009 you had your father's vehicle in for service work and that the repair order was never closed nor was payment collected for this service work performed. The sublet bill to Mr. Transmission was never forwarded to my accounting department as per standard procedure. The accounting clerk at Mr. Transmission sought payment for the outstanding sublet bill, and forwarded a facsimile copy to us. As you had the repair performed and then subsequently released the vehicle without settlement of the bill, your actions constitute a fraudulent act against this company.

You were given verbal notice last week that the balance must be paid in full by Friday, August 7, 2009 and you failed to provide payment. As such I am now informing you in writing this matter must be resolved. Furthermore, the $500.00 that has been charged to your father's Visa was done by phone and without his corresponding signature. We requested that you have the receipt signed but as you have failed to comply with this request, we will now credit back the Visa. I expect full payment of the amount owing by cash or certified cheque in the amount of $1,500.00 by 1:00 PM Thursday, August 13, 2009.

As you extended credit to your father without authorization from your supervisor Rick Waterman and in the absence of an account, I expect clearance of the outstanding balance forthwith.

[45] On August 7, the accounting department through Andy Beaton, withheld the plaintiff's pay cheque, as Saturn Saab still had not been paid. It is of note that, while Ms. Gazarek sent the plaintiff the above letter regarding this incident and insisted that the bill be paid immediately, he was not terminated for this. It was Ms. Gazarek's evidence that she considered him a good worker and, at the end, needed staff that were still available for as long as the business remained open.

[46] Mr. Nielsen responded to the above letter on August 12, 2009 indicating that Rick Waterman had agreed that payments on the outstanding amounts could be made in installments over a longer period of time and that customer and employee vehicles were often released with payments to be made over many installments. He further stated that a bill sent from Mr. Transmission for work done regarding his father's vehicle, was forwarded to the accounting department for processing.

[47] Thereafter, the plaintiff went to legal counsel who, on August 20, 2009, wrote a letter to Ms. Gazarek regarding his withheld pay, bonus, interference with his employment at Sunnybrook and the work environment at Saturn Saab. In that correspondence, the lawyer states "your organization has indicated its intention to close Saturn Saab Pickering by December 31, 2009. Mr. Nielsen, with your encouragement, has attempted to secure alternate employment for the period subsequent to that date. As you are aware, he has secured part-time employment at the Sunnybrook Health Sciences Center… You initially indicated that you would support Mr. Nielsen's efforts, and allow him some flexibility in order to accommodate his hopefully eventual transition as a full-time employee at Sunnybrook subsequent to the closure of the dealership". It would appear from that correspondence that the plaintiff's intentions at that juncture were to move into a full-time position at Sunnybrook.

[48] The letter further inquired as to "your organization's short term disability protection for employees as regards the "intense stress and related physical ills he is experiencing as a result of your organization's conduct." As indicated above, however, the evidence establishes that the days missed at Saturn Saab were days that the plaintiff worked at Sunnybrook, and not days missed due to illness.

[49] The plaintiff stated that, following receipt of his lawyer's letter, dated August 20, Ms. Gazarek wrote on a copy of that letter. "This is a an example of your harassing me" and dropped it on his desk. In this regard, it was Ms. Gazarek's evidence that this was not a moment of which she was proud.

[50] On August 12, 2009, Ms. Gazarek sent letters to all employees regarding termination of employment. The letter stated as follows:

This letter will confirm our meeting of today's date wherein you were advised that your employment with Saturn Saab Pickering will be terminated effective October 7, 2009.

Pursuant to the Employment Standards Act, 2000, this letter serves to inform you that we will be providing you with eight (8) weeks working notice which shall commence on today's date and end on Wednesday, October 7, 2009.

Thank you for your past service with Saturn Saab Pickering and we wish you all the best in your future endeavors.

[51] A second letter was sent on September 9, 2009 regarding termination of employment. This letter stated as follows:

This letter will confirm our meeting of today's date wherein you were advised that we are ceasing operations and as a result of such your employment with Saturn Saab of Pickering will be terminated effective November 4, 2009 (the "Termination Date").

Pursuant to the Employment Standards Act, 2000, this letter serves to inform you:

(a) We are providing you with eight (8) weeks working notice which shall commence on today's date and end on the Termination date;

Thank you for your past service with Saturn Saab of Pickering and we wish you all the best in your future endeavors.

[52] On September 22, 2009, counsel for the plaintiff again wrote a demand letter to Saturn Saab regarding notice, bonus, benefits and alleging high-handed, abusive conduct.

[53] On September 29, Lesley Gazarek wrote a Notice to All Employees, which reads as follows:

May this letter serve to inform you that effective October 8, 2009 our franchise with General Motors of Canada Ltd. will be terminated as per the requirement of GMCL's Dealer Sales and Service Agreement.

Accordingly, at close of business on Thursday, October 8, 2009, Saturn Saab Pickering will cease operations.

I want to thank all of you for your hard work and dedication to our organization over the years. I deeply appreciate all of your efforts, especially during the extremely trying times that our franchise has experienced over the last year.

I wish you all success in your future endeavors.

[54] In cross-examination, the plaintiff acknowledged that, given the circumstances regarding the dealership and closure, it would have been a difficult time for everyone, including Ms. Gazarek.

[55] As regards his income, he testified that he began to have anger issues due to financial strain commencing when he began working for Saturn, due to the fact that he noticed he was not making the same amount of money. The evidence contained in the T4 forms produced in evidence indicates that in 2008, he made $12,000 at Sheridan and $41,000 at Saturn, for a total of $53,000, whereas in the previous year he had made $55,000, which was a $2,000 difference. He stated that, as a result, he had to subsidize his income. He spoke with his supervisor, Rick Waterman, about the decrease in income. He did not speak with either of the persons he considered owners of the companies, Mr. Gazarek or Ms. Gazarek, but only spoke with his direct supervisor, Rick Waterman.

[56] Based on the documentation produced, his employment income for 2006 was $56,244.16, for 2007, $57,533.75, for 2008, $12,675.87 from Sheridan and $41,462.30 from Saturn Saab for a total of $54,138.17, and to the date of termination in 2009, $38,963.08 from Saturn Saab and $13,740.17 from Sunnybrook for a total income in 2009 of $52,703.26.

[57] T4s for 2008-2009 were issued by Saturn Saab of Pickering. He produced no income tax returns to indicate overall income. There is no documentation, either T4s or tax returns, in evidence to indicate the amount earned on a part-time basis from his father's construction business.

[58] On July 16, 2010, the plaintiff became a part-time supervisor for every weekend, projects and relief at Sunnybrook. He testified that he became a full-time employee at Sunnybrook on March 31, 2012. From 2009 to 2012, he had significantly increased his hours at Sunnybrook, and had taken numerous courses to help his advancement at Sunnybrook. At the time of the trial, his position at Sunnybrook was Supervisor of Environmental Services Partner, supervising approximately 110 staff with an annual salary of approximately $70,000.

[59] His evidence as regards his mitigation attempts following closure of Saturn Saab from 2009 to 2012 included contacting three people in the car industry for a senior service advisor position in 2009, a position above that which he had held at Sheridan and Saturn. He also contacted Women's College Hospital for any type of position, LakeRidge Hospital for an Environmental Services full-time position, and also contacted someone at Universal Studios for any type of position in 2010. He did not make written application. He focused his efforts in and after 2010 on additional training courses for the Sunnybrook position. He conceded that he was available for more hours of work at Sunnybrook after the dealership closed. Indeed, after he ceased working with Saturn Saab, his hours at Sunnybrook increased, although he did not assume full-time employment until 2012.

[60] The plaintiff alleges that the defendants have, by their conduct, made him ill. He testified that he began to have medical issues arising from his work at Saturn. After moving to Saturn Saab, his income decreased. He began to have anger issues, became upset, nauseated and had migraine headaches. He further stated that his issues began when he noticed that his pay was less at Saturn Saab than it had been at Sheridan. In 2008, his income had been $53,000. The previous year his income had been $55,000, such that there was a $2000 difference. It was this $2,000 difference which he testified caused the financial strain and caused him to go out to seek part-time employment. He denied that he sought the part-time employment due to the issues that the dealership was having with GM.

[61] The plaintiff initially stated that he began to have medical problems in June of 2009 as a result of the work done on his father's vehicle and the accusations of theft or fraud. However, the invoicing of his father's vehicle did not occur until August of 2009. In cross-examination on this point, he was unable to be clear as regards dates, or tying the events regarding his father's vehicle to his alleged physical and medical problems.

[62] He stated that, by this time, the workplace began to be an "unsafe environment". He was feeling threatened. He stated that it was about this time that he was being accused of theft as a result of the work on his father's vehicle. I note that, based on the evidence, the first correspondence in which the issue of his father's vehicle was raised and which used the phrase fraudulent act was sent in August of 2009, not June.

[63] He stated in cross-examination that he first had a conversation with Ms. Gazarek in June of 2009, when he considered the work environment was becoming "unsafe"; when he began to feel threatened, due to having been accused of theft. In examination-in-chief, he testified that his medical issues began after he received the letter from Ms. Gazarek regarding his father's vehicle, accusing him of a fraudulent act. In cross-examination, he testified that his illnesses would have started in about June of 2009. After he received the letter about his father's vehicle from Leslie Gazarek dated August 12, 2009, which accused him of a fraudulent act, he began to feel nauseated, sick, afraid.

[64] However, the issues did not surface until invoicing of his father's vehicle in August of 2009. He stated that, as a result, he had to visit his doctor on numerous occasions, but only produced one note from a walk-in clinic dated June 29, 2009 which stated: "Christopher was off work June 27/09 and June 29/09 for medical reasons. He will return July 2, 2009". He testified that he had seen the co-partner of his family doctor at a walk-in clinic. He had not made an appointment, but simply walked into the clinic. While he complained of feelings of depression, nausea, migraines and anger issues arising from the employment situation, there is no medical evidence of any of this. Indeed, the only medical evidence adduced was the note, above-mentioned, which was not signed by the doctor he consulted but by a "Marlene Grundy for Dr. F. Petroff". He stated that these problems affected his family life and home life and people were telling him that he was not the same person. He stated in cross-examination that he was not prescribed any medication.

[65] He stated that, due to his medical complaints, he had been advised by the doctor not to work, and was absent from work on several occasions. However, he thereafter qualified this by stating that the doctor had indicated that he was not to work at Saturn Saab, which appeared to be causing the problems, but that he was well enough to work at his part-time job at Sunnybrook, which he did.

[66] He testified that, at that time, he was made to feel as though he was not doing his job properly. He testified that he felt that the dealership was attempting to have him resign because they did not want to pay for severance when the business closed. He stated that there were a number of people who told him he should resign, as well as the note passed on his desk from Ms. Gazarek telling him he was harassing her. They accused him of fraudulently creating work orders for his father's vehicle and there were accusations of theft around this. He testified that mechanics were telling him to watch his back as others were trying to set him up. He was becoming stressed and depressed.

[67] As a result, he kept handwritten notes of incidents that occurred in the work place.

[68] He stated that it was in about June of 2009 that he was told by Mr. Waterman, and/or Ms. Gazarek that he should resign. In cross-examination, when asked where and when this occurred, and in what context, he stated "so, it would have been either I was pulled aside, it would have been in passing, walking, like, I can't recall exact – we are talking 2009." Subsequently, he stated that he believed it was in a one-on-one meeting with Ms. Gazarek and was as simple as "you should resign" but could not remember exactly where, when or what time the conversation occurred. Thereafter, he stated that "it could have been just in passing I don't recall…" Indeed, there was no definitive answer given.

David Asselin

[69] David Asselin is 40 years old and resides in Whitby with his wife and two daughters. He is presently unemployed. He and the plaintiff have been friends since 2000 and remain friends to this day. They see each other approximately once a week. He was first employed with Sheridan in March of 2001 as a service advisor. At that time, the plaintiff was an apprentice in the shop. He remained until October 2004, when he was fired. He subsequently went to work with Honda, where he remained for 1 1/2 years. In March 2006, he became employed with Saturn Saab of Pickering due to his friendship with the service manager at the time. He was let go on December 8, 2008. He was advised that there was a position at Sheridan and was hired. He worked at Sheridan for three months, until he was fired in March of 2009. He thereafter sued Sheridan, Pickering and Gazarek Realty.

[70] He testified that it was common practice for employees to move from Sheridan to Saturn or vice versa. If there were an error in his pay cheque, he would have to raise it with Andy Beaton, the secretary-treasurer of Sheridan. As regards the work environment, it was his evidence that he was not allowed to take sick days or vacation. He did not recall ever taking a vacation except prior to being married. He testified in cross-examination that he nevertheless stayed at Sheridan and Saturn for as long as he did because the entire staff were his friends. He subsequently conceded that he returned to Saturn because it was closer to home and he was going to make more money than at Honda.

[71] He described the workplace, generally, as stressful, due to the fact that he was working with a group of alpha males. He testified that after his termination from Saturn Saab, the plaintiff appeared stressed out. Mr. Asselin explained this by the fact that, prior to his leaving, he was "the work horse", the person who knew how to do everything, and after he left, Chris had to assume all of the responsibility.

The Defendants' Witnesses

Gerald Gazarek

[72] Gerald Gazarek currently resides in Ajax, Ontario with his wife. His daughter is the individual named defendant, Lesley Gazarek. She and his two sons had worked with him in the family automobile business, Sheridan Chevrolet Cadillac.

[73] He testified that he had always been in the automotive industry, that he had worked with General Motors Canada and then chose to go on his own. He applied for and secured a franchise to open in Pickering. The business commenced in 1977. In 1990, he started the Saturn Saab dealership, which is now owned by Ms. Gazarek, At that time, he was the dealer/operator of Saturn which was owned by his son, Jay, who subsequently died. At that point Ms. Gazarek purchased the business. She had previously been the general manager at Saturn and became the owner in 2007. GM approved of her as the dealer principal in 2008. Mr. Gazarek explained that General Motors controls the granting of the dealer principalships which are for a five-year term. Dealer principals cannot be switched, but must be approved by General Motors which controls the franchise.

[74] When Sheridan was first opened, he had a "shareholder", a financial partner called Motors Holding Canada, which was a subsidiary of General Motors of Canada and which contributed a percentage of the funds to allow Mr. Gazarek to invest in the business. It continued as a "shareholder" for approximately 13 months. Thereafter, he became the sole owner of Sheridan.

[75] He testified that Sheridan engaged in the sales and servicing of new and used automobiles and parts, and ran the service and body shop, plus the accounting department. In 2008-2009, there were approximately 60 to 70 employees, many of whom were long-term employees.

[76] At Sheridan, he was the president and had five department heads plus the secretary-treasurer and, under them, their operating staff.

[77] He testified that Gazarek Realty Holdings was started in 1984. He started the business on the advice of his accountants and lawyers. He stated that it was quite common in the automotive and other small businesses to split the real estate from the operating company for tax and liability purposes. Gazarek was strictly a holding company which owned the real estate on which the two dealerships were situated. Gazarek was a real estate holding firm. It never operated any other businesses. He stated that he was the president, owner and principal shareholder of Gazarek Realty Holdings and owned approximately 93% of the company. The remaining 7% was held in a trust for each of his children. In cross-examination, he was taken to his testimony in examination for discovery, where he indicated that he was the sole shareholder. He stated that his testimony changed at trial because he had been in error as regards the shareholdings. He had forgotten that some 20 to 25 years prior, he had crystallized a capital gains deduction and the lawyers and accountants at the time had ceded 2% or 2 1/3% to each of his children's trusts. He stated that he had simply forgotten this but that he was always a major shareholder of the company. He was the only member of the Board of Directors.

[78] He testified that Gazarek Realty was strictly the landlord for Sheridan and subsequently also Saturn. Based on recommendations from his accountants, Gazarek Realty also served as the paychequer for salaries for the management staff of both Sheridan and Saturn, again for tax purposes. He stated that it was an "in and out situation" and that the managers were paid through Gazarek Realty which in turn was compensated by the relevant business, namely either by Sheridan or Saturn. Thus, the T4 forms for management at both Sheridan and Saturn Saab had as the employer's name, Gazarek Realty Holdings Limited. None of the management staff at Sheridan or Pickering worked for Gazarek, but Gazarek as paychequer, issued T4 forms. He described it as strictly a "pass through", with the employer business, either Sheridan or Saturn reimbursing Gazarek for the payment of the cheques to their respective management. In cross-examination, he confirmed this, and stated that it had been done for 15 to 20 years. He testified that the financial statements and income tax documents evidencing this were completed annually by the professional accounting firm and that it was legal and acceptable under the Income Tax Act, R.S.C. 1985 c. 1 (5th Supp.). He stated that he hired his accountants to audit the books, to complete properly filed audited statements and to do the income tax returns. The tax documents in evidence in this trial were completed by a professional accounting firm. Gazarek Realty did not act as a paychequer for either companies' non-managerial staff, but only for management. Thus, this arrangement did not affect or have anything to do with payment of staff such as the plaintiff.

[79] It was suggested in cross-examination that the original documents incorporating Sheridan in 1977 stated that it may "purchase, rent, manufacture, repair, and deal in, sell, operate and let for hire motor vehicles of every kind, nature and description to move or transport". Counsel for the plaintiff also suggested that this business was subsequently purchased by Gazarek Realty, and that Gazarek Realty was running a car dealership with a repair shop. However, Mr. Gazarek stated that this was not correct. The original document had been completed by lawyers in 1977 and those were the articles of incorporation for the conduct of an automobile business. In 1984, for tax reasons, another company was formed and it became the operating company. Although this was done, the performance or capabilities of the realty company in the original articles of incorporation were not changed. Nevertheless, Gazarek Realty did not operate as an automotive business.

[80] Gazarek, as property owner for both Sheridan and Saturn was also paid rent at fair market value by each of the businesses on a monthly basis. The businesses would either issue a cheque or transfer funds to Gazarek to compensate for the management salaries and to make monthly rental payments. The leases were net/net, meaning that the taxes, heat, light, power and rent were the obligations of the operating companies, so it was net

et to Gazarek.

[81] He testified that the rent from Pickering was $15,000 per month. Based on the documentary evidence and the testimony of Mr. Gazarek, it appeared that the rental obligations for Sheridan were approximately $500,000 per year and for Saturn Saab were approximately $180,000 per year. As well, in 2008, management staff salaries for both Sheridan and Saturn Saab, as paid through the paychequer, Gazarek Realty, amounted to $1,113,906. The amounts paid out for the management staff salaries by Gazarek Realty came from the respective companies, Sheridan and Saturn Saab. The only revenue streams for Gazarek Realty were from either Sheridan or Saturn Saab. It received no revenue from any other entities. As of 2009, Gazarek Realty registered a loss for the first time.

[82] Mr. Gazarek testified that when Sheridan and Saturn received the notices of termination of franchise from GM, Gazarek began to assume payment of some of those expenses, especially at Saturn which was becoming cash-strapped, and unable to pay on time and as required.

[83] He testified that he first met the plaintiff who had been hired by Peter White as a co-op student. He stated that Sheridan hired co-op students with the hope that they would eventually continue in the business. He understood from Mr. White that the plaintiff was taking a mechanics course at school, but that his grades were not adequate and that he did not qualify to continue on in the apprenticeship mechanic program. Apparently, Mr. White thought that the plaintiff could be of value to the business in the service department, and was willing to train him as a junior service advisor.

[84] He testified that he had little interaction with the plaintiff or co-op students other than walking through the dealership to say hello, as was his customary habit.

[85] As regards Sheridan's discount policy for the servicing of vehicles for employees, their families and friends, Mr. Gazarek stated that the policy is very clear. It was a written and orally stated policy. Employees were entitled to a 20% reduction in the door rate on service and 20% off retail on parts. It did not extend to the employees' families, parents, siblings or friends. It was only for the employees. Any discounts to be granted had to be approved initially by the service manager. He categorically denied that it was common practice that employees could extend this policy to everyone, without approval. He stated that the business "is a high cost business… a very expensive kind of business"… and that "no discounts are given without the prior approval of the department manager". He stated that the plaintiff was "not authorized to give any discounts to customers unless they were authorized. It wasn't common practice. We don't operate on that large a margin that we can do work for free." He stated that he recalled only one instance when something like that happened, and he terminated the employee, who was a service advisor and a long-term employee.

[86] When asked about the numerous work orders produced in evidence at trial by the plaintiff which indicated discounts given to family members and customers over the years, Mr. Gazarek stated that they would write 3,000 to 4,000 work orders per month for retail customers, in addition to the internal used car reconditioning business, and if the service advisor did not close out the work order, it was very hard to detect that there was anything going on in respect to adjustments or non-authorized adjustments to the work order such that it was fairly easy to slip through, if a service advisor chose to do that kind of activity. He reiterated that the policy was strict, written, posted and pointed out numerous times in monthly service meetings.

[87] As regards the plaintiff's allegations of common employer, Mr. Gazarek clearly stated that Gazarek Realty was not a common employer. He testified that Sheridan and Saturn Saab were independent wholly-owned companies, Sheridan owned by himself, and Saturn by his daughter, Lesley Gazarek. He testified that he had no management control of Saturn and Ms. Gazarek had no management control of Sheridan.

[88] He stated that the accounting department was headquartered at Sheridan and the accounting services were sublet to Saturn, which was a smaller store. Rather than setting up an independent accounting department at Saturn which would be cost prohibitive, Saturn sublet and paid for the accounting services which were done through the Sheridan accounting department.

Each of the businesses had their own financial statements and record keeping which were separate one from the other.

[89] As regards employees going from one business to another, he explained that it was quite common that people would start out as a junior, reach a point where they would want to expand their knowledge and skills, or where they outgrew one organization and wanted to go elsewhere. He stated that it was always disappointing when good employees wanted to go elsewhere. Where possible, they would be encouraged to go from one of the businesses to the other. Where that was not possible or not desired by the employee, they tried to assist in placing them at other dealerships. As regards employees going from Sheridan to Saturn or vice versa, he testified that he did not simply have the power to tell them that they were going from Sheridan to Saturn or vice versa. It was ultimately up to the business doing the hiring. His was only a recommendation of the employee where merited.

[90] He testified that he was advised through the secretary-treasurer, Andy Beaton, that his service manager, Bill Rouse was going to terminate the plaintiff's employment, as he was unhappy with the plaintiff's performance and did not feel that he had the potential to function in the job at Sheridan. Mr. Beaton indicated that there was potentially an opening at the Saturn dealership for a service advisor, and that he could speak with Mr. Waterman about this. Thereafter, the plaintiff had an interview with Mr. Waterman, the service manager at Saturn, who was prepared to hire him. However, the plaintiff was undecided. Mr. Gazarek testified that he spoke with the plaintiff and encouraged him to go to the new job. He testified that the environment at Saturn was different, a little bit more low-key and that the plaintiff could grow there, with the guidance of Mr. Waterman.

[91] As regards the work environment, he stated that they were proud of their staff, the staff was proud of working there, and they had long-term employees. He described his staff as his most valuable asset. He denied the descriptions of the work environment given by the plaintiff and Mr. Asselin. He stated that he was a humanitarian and would never treat anyone as described. Indeed, he indicated that "you can't stay in business if you were to do those things" and noted that even the labour laws would not allow one to act like that.

[92] He testified that he played no role in the Saturn Saab Pickering dealership, that it was his daughter's business and he respected her expertise. He tried to stop by about once a month on a social basis, but oftentimes did not make it. He stated that he attempted to stop by at Christmas to say hello, as many of the employees there were known to him.

[93] He further stated that Gazarek Realty played no role in the operation of Saturn Saab or Sheridan. It was merely the lessor and paychequer for each of the two companies.

[94] The defendant was taken to a number of documents from Great West Life Assurance regarding the benefit plan for employees. He stated that he was not familiar with these documents, as they were handled by one of his department managers. It appeared from the documentation that the employees, whether they worked for Sheridan or Saturn Saab had the business name Sheridan Chevrolet Olds Cadillac at the top, as plan sponsor. Mr. Gazarek was unable to say why Great West Life prepared the documents in that way, but categorically stated that there was no conspiracy and that the dealerships were separate companies.

[95] I note that the documentary evidence for the plaintiff also included a document from GWL entitled "Revised Employee-Confirmation" dated March 1, 2008, headed Pickering Auto Mall, which was when the plaintiff transferred from Sheridan to Saturn.

[96] As regards the closing of the dealerships, he stated that from 2008 onward, the issues about GM, financial difficulties and discussions of bailouts in the United States were in the forefront of the news. They were all aware of the situation. However, on May 19, 2009, 42% of the GM dealers in Canada (approximately 245 dealers) received a letter by e-mail stating that the franchises would not be continued into the next five-year cycle. GM stated that they were required to terminate a large portion of the dealerships, including the Saturn dealerships. From the fall of 2008, GM had announced that Saturn and Saab would be discontinued, which affected Saturn Saab. Both Sheridan and Saturn Saab received notices that their franchises would not be continued. He stated that they were required to maintain the dealerships but could not order new products. They were left with large inventories which were to be discontinued, which resulted in significant inventory losses.

[97] He testified that he could not guarantee any kind of employment after October and the employees had to look after themselves. The best employees were immediately solicited by competing dealerships, such that he started to lose those employees. He stated that he had to let them go as it was their future. He testified that some of the employees stayed and worked, until they were not needed, but others left to pursue new opportunities. He had to stay open as long as possible, as GM took the position that if a dealership closed, it would get nothing from GM. He explained that GM owed them money for parts and service and the warranty work they did for customers that had to be reimbursed to them.

[98] He stated that the business lost $1.5 million.

[99] He testified that Gazarek Realty was “on the hook” for $5 million mortgage and for heat, light, power and taxes. Gazarek Realty did not cancel the leases between it and each dealership, nor was anything forgiven. Each of the operating companies had to contribute what they could as money came into them. Once the process of liquidating assets began, the companies would pay Gazarek Realty what was owed for their expenses, covered by Gazarek Realty, including rent, taxes, heat, light and power.

[100] In cross-examination, he was taken to a number of bank accounts and other financial documentation which showed lump sum transfers from one company to another. When asked about each of these transfers, Mr. Gazarek was unable to answer, as he indicated that he did not have anything to do with the account numbers or preparation of the accounts. He reiterated that he had a professional accounting in-house department which handled the bank accounts, and which was scrutinized independently by the company's professional accounting firm in Toronto. He stated that he had the utmost confidence in these professionals and that none of the money disappeared. Rather, he stated that it was legitimately applied to outstanding indebtedness or arrears of accounts among the dealerships and Gazarek Realty. Gazarek Realty was also the common paychequer for both dealerships, and was repaid by each of the appropriate dealerships for all amounts paid out by Gazarek Realty for management salaries.

[101] He stated that he was certain it was for funds or obligations that the dealerships owed to Gazarek Realty. In cross-examination, when asked whether money was stripped or liquidated out of either Sheridan or Saturn Saab to satisfy Gazarek Realty, the defendant replied "Absolutely not". Mr. Gazarek stated that he did not personally strip the assets of either Sheridan or Saturn Saab.

[102] He was taken to numerous entries in bank statements as regards transfers from Saturn to Gazarek Realty following notice from GM that Saturn would be closing. He stated that these were for goods, services, and/or funds lent to Saturn when it was experiencing the initial financial difficulties. The obligations to be repaid when Saturn was able. He stated that the transfer amounts, ranging from $25,000-$208,247.80, were not large chunks of money when one considers that the operations were handling $4 million to $8 million per month.

[103] Saturn Saab ceased operation on October 8. While the operating companies of Sheridan and Saturn Saab remain in existence, all assets were liquidated and the real estate was eventually sold. The businesses remain in existence as they are part of a class action against General Motors for breach of the Arthur Wishart Act, (Franchise Disclosure), 2000, S.O. 200, c.3.

[104] The monies were used to liquidate obligations with Gazarek Realty and others. He stated that the majority of the assets that were liquidated were directly dispersed by Saturn and Sheridan to their creditors, such that the funds did not all go to Gazarek Realty. Indeed, Saturn still owes Gazarek Realty substantial amounts of money as they were unable to fulfill their obligations under the lease. In cross-examination, he admitted that the Asselin judgment remains outstanding as well.

[105] The property on which the dealerships had been located were sold to a Honda dealership; 1800 Kingston Road was purchased for $6.5 million and 980 Kingston Road for $4.5 million.

Lesley Gazarek

[106] Lesley Gazarek was the owner and dealer principal for Pickering Auto Mall operating as Saturn Saab of Pickering.

[107] Ms. Gazarek testified that she first got into the automotive business through her father who was the owner and dealer/principal of Sheridan. She testified that she began working in the dealership when she was 13 or 14, in different capacities. During university, she worked at the dealership in the summers.

[108] She testified that in 1989, her father began to build two new dealerships, including the Saturn dealership and a Mazda franchise which was held for only a brief period of time. At university, she worked summers at the Mazda franchise while her father still owned that franchise.

[109] After her graduation in 1985, she began to work at the new Saturn dealership, as there was a requirement for staff there. She began doing reception work, along with other clerical and accounting work. Shortly thereafter, the need for an office manager arose and she assumed that role.

[110] Her goal was ultimately to become a dealer. However, she needed the experience first, including experience in sales, service, parts and other departments integral to the business.

[111] In 2002, she became the General Manager at Saturn. In 2006, she began to actively acquire the dealership and become the dealer. This process took an extended period of time, as she had to be approved by General Motors. At that time, her father was recognized by GM as the dealer/principal. Her brother, Jay, who died in 2008, was the owner of Saturn Saab. She purchased the business from her brother in 2007. Due to the long process of approval from GM, she did not become the dealer/principal until March of 2008.

[112] She testified that her father rarely came to the dealership. He was the kind of operator who trusted his people to do the job that he had placed them in. His visits to the dealership were social. She stated that her father trusted her judgment and let her run the dealership. However, in interactions with General Motors, they generally wanted to speak with the dealer principal, her father, and not herself until March of 2008 when they approved her as dealer principal. She testified that after approval was granted, there was no discernible change in the running of the business, as her father had left her to run the business prior to that time.

[113] At the beginning of 2008, Saturn was coming off a very strong year and was fully staffed with approximately 40 to 45 employees. She confirmed that the Sheridan dealership was a bigger, higher volume, higher sales dealership than Sheridan. Further, Saturn did not have a body shop.

[114] As regards the plaintiff, she first knew of him when he started as a co-op student at Sheridan in 2000. She worked there at the time on a part-time basis while she was a student. She had no real interaction with him at the time, but only knew of him.

[115] She testified that in 2008, Mr. Waterman spoke with her about a staff opening and mentioned the possibility of bringing Chris Nielsen to Saturn in the capacity of service advisor. She testified that no one had ever characterized the plaintiff as a bad employee. If, for some reason, in a specific work environment an individual is not working out, perhaps because of a personality conflict, it does not mean that they are a bad employee. It does not mean that they are not employable. It did does not mean that even though he may not have been working out at Sheridan, he would not work out at Saturn Saab. When she learned that he was not working out at Sheridan and there was an opening at Saturn, she hired him, although she had never worked directly with him prior to the time.

[116] She and Mr. Waterman met with the plaintiff and subsequently offered him the position. She recalled discussing the aspect of seniority with him, as he was concerned that he had spent so much time at Sheridan and wondered if the Saturn dealership would recognize that. She stated that it was obvious that in his mind there was a distinction between the two companies because he asked that question, and if they had been the same entity he would not have needed to be concerned about that. As a consideration, because she wanted him to work at Saturn, she stated that she would honour his previous years at Sheridan, although she did not need to, as it was not the same corporation. However, as she wanted him to come as an employee she agreed to recognize the years he had worked at Sheridan. A document was drawn up, which stated, as regards seniority, "your existing seniority… will transfer to Saturn Saab Pickering".

[117] She stated that she had no discussion regarding employment of the plaintiff with her father.

[118] She was unaware of any performance problems or disciplinary problems with the plaintiff in 2008. Such problems would have been brought to her attention by the service manager.

[119] As regards the plaintiff's allegations of intimidation and poor treatment of staff, Ms. Gazarek categorically denied this and stated that such a statement by him was shocking, as she was not an intimidating, aggressive or unapproachable individual.

[120] She stated that they did not operate to intimidate employees. Their goal was to keep employees. She stated that the fact that they were rated 15th of 65 dealerships in Canada by GM indicates the kind of business that they ran. She stated that it was a good place to work. Their employees were not unhappy, abused or ill treated. She denied that the employees were unable to take lunch breaks, breaks or vacations.

[121] As regards closure of the dealership, she stated that the first public announcement regarding GM closing dealerships came on December 4, 2008. It was a public announcement; the dealerships had not been given advance warning of the impending closure. They were not being provided with information from the factory level. All that she was told was that Saturn and Saab were no longer going to be part of General Motors portfolio. There were 65 Saturn retailers in Canada. In early 2009, dealers began to close voluntarily or go bankrupt. The staff was aware of this. She was candid with the staff and management and kept them apprised of the situation. Not only did she keep them informed, but it was in the general news, as well, and dealerships in the area had begun to close.

[122] She had hoped there may be other options. There was a proposed deal between GM and Penske Automotive which, however, did not materialize. She also attempted to obtain other dealerships, but without success.

[123] After Saturn Saab received the letter from GM regarding the closing, she looked for other options, including dealerships with Chrysler, Hyundai and Lexus. She did not approach Fiat or Daewoo, as the plaintiff testified, or and does not know where that information came from.

[124] She stated that she had only become the dealer principal in March of 2008, some nine months prior to the announcement. She had $5 million worth of inventory that, after the announcement, no one wanted.

[125] Some staff left to pursue other opportunities, while others remained until the final closure. She testified that when staff left to pursue other opportunities, she understood and made them aware that she understood. They had obligations and families to take care of.

[126] On May 19, 2009, it was announced that Saturn would close in Canada as well as 42% of the GM network. She already had staff who had departed as they sensed no future at the dealership. She lost some very key people. She understood why they were leaving and encouraged them to do so. She knew they were at risk if they stayed with her.

[127] On either May 19 or 20, she received the official written notice of the termination of her dealership. On the same day, her father also received notice that the Sheridan dealership would also be terminated. By the end of May 2009, the employees knew that the dealership was terminated but that GM required them to remain open.

[128] As regards the plaintiff's job at Sunnybrook, she recalled that, in about June, the plaintiff had requested time off regarding training for a potential new job. She stated that, in the normal course, she would not see such a request, which would go to the employee's supervisor, not the owner dealer. In this case, the plaintiff did go to his supervisor, Mr. Waterman. She believes that Mr. Waterman ultimately came to her due to the fact that there was so much attrition occurring in the dealership, they were losing staff and were understaffed. She recalled that Mr. Waterman wanted some direction. The plaintiff's request was denied due to the understaffing and the decision was not subsequently changed.

[129] She stated that regarding the refusal of the plaintiff's request on June 15 for time off June 17-19, she never wanted him not to be able to secure alternate employment. She had gotten word two weeks earlier of the closure, and was looking for alternate dealerships and options to stay open. Everyone had to explore options and be prepared. However, in this case, his request, which came two days prior to his requested time off, had interfered with his full-time job with Saturn.

[130] She testified that, thereafter, the plaintiff stopped showing up regularly for work and missed a number of days. He further wrote a letter, delivered to Mr. Waterman, who brought it to her attention as tensions were perceived to be escalating.

[131] The plaintiff thereafter produced a medical note indicating that he was unable to work June 27, 28, 29 and 30. She stated that where a long-term employee's work pattern significantly changes to the extent that he stops reporting for work on a regular basis, it was shocking. However, when asked why she did not terminate him, she stated that she was under extreme pressure and that she felt the staff was feeling the same. Operating conditions were not normal given the imminent closure and she perhaps extended a bit more latitude than she normally would. She also knew that she could not replace him and did not want to fire him. She denied ever telling Mr. Waterman that the plaintiff should resign. She needed him to work at Saturn Saab.

[132] As regards the issue of discounts, employees were given discounts for service done on their vehicles. This was not extended to family members, friends or others. She would not have permitted it if she had known that the plaintiff was granting discounts to family and friends.

[133] She explained that for purposes of servicing of automobiles, when a vehicle is brought in for repairs and servicing, a work order is first opened. Accounting does not see the open work order. Once the work order is closed, the amount charged is posted into an accounting schedule and becomes identifiable as an amount to be collected. Until a work order is closed, it does not hit the books, and from a financial/accounting point of view, the accounting department does not know what is outstanding. Until the work order is closed, it cannot be identified as being paid or not. Thereafter, the next step is the manner in which the payment is applied against the work order.

[134] Where an employee wanted to extend a discount to someone, that employee first had to obtain approval to do so. The employee could not arbitrarily extend a discount without first obtaining approval. Ms. Gazarek denied that it was common at Saturn Saab for customers to go months without paying their bills. She stated that she could not maintain a business if that were the case.

[135] She stated that the situation of the plaintiff's father's vehicle was brought to her attention. She understood that the car had been released five months earlier without payment, which was very disturbing to her. She had not been aware of this, had not made arrangements or given approval for this and stated that Mr. Waterman, the plaintiff's supervisor was also not aware of it. She stated that there was also a discount of labour to zero (0), which was very uncommon as technicians were paid by the job and not by the hour. This would have been approximately a three-hour job which was discounted to zero (0). She sent a letter to the plaintiff as there was no payment plan in place. She stated that if a payment plan had been in place the letter would have been unnecessary. When asked about the phrase in her letter "your actions constitute a fraudulent act against this company" she stated that the circumstances of the situation and what had transpired was very disturbing to her. She stated in cross-examination that there were specific things around the account, the handling of the work order, and the paperwork, and release of the vehicle without a payment plan that led her to believe that something was not right. It was the specific circumstances of the bill and what transpired that concerned her.

[136] She stated, in cross-examination, that the accounting department does not see the work order until it is closed. As regards the plaintiff's father's work order, it was not closed. However, Mr. Transmission called, looking for payment for their bill that was outstanding and had not been paid, and the accounting department began to investigate. She testified that the issue was not whether Mr. Waterman saw the work order on his desk, but rather that no payment plan had been put in place prior to release of the vehicle. No payment arrangements had been made.

[137] She denied that she had threatened the plaintiff with his job or asked him to resign. She just wanted to obtain payment. She noted that at the same time, the plaintiff had been failing to attend work on a regular basis. Indeed, she did not want him to resign, because she needed the staff to stay. Otherwise, they would not be able to service the vehicles and, it was a condition from General Motors that they remain open.

[138] She testified that after the fact, she learned that indeed the plaintiff's pay cheque had been withheld by Andy Beaton. She never communicated that to him or instructed him to do so. She was upset upon learning that this had occurred. Once the payment arrangement had been made, she felt that the issue had been put to rest and focused on other things, namely the imminent closing.

[139] Subsequent to this, on August 20, she received the plaintiff's lawyer's letter, while the plaintiff was still employed with her. She testified that such a thing had not happened to her before. She was shocked, surprised and disturbed. She testified that she felt harassed, receiving the letter at her place of business. The letter seemed extremely aggressive. She knew that there were difficulties preceding this, including the days the plaintiff had taken off and the bill for his father's vehicle, both done without approval, but she did not think it had escalated to the point where he needed to communicate with her through legal counsel. In cross-examination, she acknowledged that he may have also viewed the situation as having escalated.

[140] She responded by writing on a copy of the letter "This is an example of you harassing me" and gave it to the plaintiff. She put a copy in an envelope and handed it to him. She did not throw it at him. She stated that she was not proud of this, but that is what she did. She never discussed the lawyer's letter with the plaintiff. Thereafter, she always addressed him and spoke to him about customers the way she had always addressed him and spoken to him about customers. She tried to conduct herself as she had always done prior to the incident.

[141] After the final notice of closure, the 35 staff remaining were called to a meeting. She was faced with termination of 35 employees simultaneously. She made the announcement in the shop, away from the public, and distributed the termination letters to the staff with the assistance of her managers.

[142] She received another letter from the plaintiff's lawyer on September 22, regarding his termination from Saturn Saab effective November 4, 2009, and demanding appropriate notice, salary, bonus and benefits be paid. The letter also demanded information regarding Saturn Saab's short-term disability program and indicating that due to the abusive environment in the organization, the plaintiff was experiencing stress and associated physical ills, for which his physician had prescribed that he take time off to recover.

[143] After the business closed, Ms. Gazarek, along with her brother and father, cleaned up the long-established businesses, sold assets, packed things away and attempted to put in order their affairs in order to close the businesses. This took several years. She never considered herself an employee of Gazarek, but was only cleaning up the business’s affairs through it. In cross-examination, when her testimony on examination for discovery was put to her as regards the time following closure of Saturn Saab, and her answer that she had worked doing accounting at Gazarek, she stated that she was doing bookkeeping after Saturn Saab closed and therefore agreed with the statement.

[144] Also on cross-examination, as regards her shareholdings in other of the companies, when asked about her answer given on examination that she had no other shareholdings, she stated that this was subsequently corrected in answer to undertakings to 2% held by her trust company in Gazarek Realty. She stated that she did not know that her trust company held this small percentage. This was consistent with the evidence given by her father who testified that he had forgotten that this had been set up by the accountants with small percentages allocated to the to children's trusts. She testified that Saturn sublet the accounting department services from Sheridan, for economic reasons. Each business had originally had two independent accounting departments. Other dealerships in the city had begun to sublet accounting departments among various dealerships as a cost-savings measure. The corporate defendants subsequently adopted this model. All of the businesses used the same independent professional accounting firm, She testified that all three companies used the same accountant (Ed Sheck) and lawyer (John Howe).

The Credibility of the Parties

[145] Many of the issues involved in this case are fact-based. As regards those issues, the evidence on most material points is significantly divergent and credibility thus is a large factor in the evidence given by both parties.

[146] In assessing the credibility of the witnesses in this case, I am guided by the observations made by D. Brown J. in Atlantic Financial Corp. v. Henderson et al, [2007] 15230 (SCJ), at para. 27 as follows:

In deciding between these two diametrically opposed positions, I am guided by the observations made about assessing the credibility of witnesses by O’Halloran, J.A. in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) where he stated, at page 357:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[147] Additional factors to take into account when assessing a witness’ credibility include the presence or absence of evidence contradicting a witness’ statements and corroborative evidence: Sopinka and Lederman, the Law of Evidence in Civil Cases (1974), pp. 527-8.

[148] The plaintiff's evidence on material or key facts was contrary to that given by the defendants. I found the plaintiff's evidence throughout to be inconsistent, in some cases contradictory, and many of his answers to be self-serving and defensive. In cross-examination, the plaintiff was often vague, unable to give details or stated that he did not remember. When he was confronted with evidence which was not consistent with his version of the facts, he became evasive, was unable to remember, or changed his answer.

[149] His evidence regarding his applying for and obtaining a position with Sunnybrook did not accord with common sense in the context of the circumstances regarding GM’s discontinuance of the Saturn Saab dealerships in Canada. Nor was it consistent with letters that he and his lawyer wrote to Saturn Saab. His allegations of intentional infliction of mental suffering and his evidence regarding his illnesses and stress, which he attributed to the conduct of the defendants toward him, were not supported or evidenced by any clinical notes, records or other medical evidence but for one doctor's note from a walk-in clinic which simply stated that he was unable to attend work on a number of days. As regards his failure to attend work on several days in June, he initially testified that this was due to his doctor's advice that he should take time from work due to his stress. However, the evidence indicates that he did work those days at Sunnybrook.

[150] I did not find the plaintiff to be credible.

[151] In contrast, the evidence of both Gerald Gazarek and Lesley Gazarek was forthright, direct, clear and concise in both examination-in-chief and in cross-examination. The evidence given by each of them was consistent with the documentation adduced in evidence. Both of their testimony was challenged by counsel for the plaintiff in cross-examination, but was not shaken, altered or changed.

[152] As regards prior inconsistent statements, as set forth at paragraphs 77 and 144, above, Mr. and Ms. Gazarek were forthright in correcting their errors, and I accepted their explanations.

[153] Based on all the foregoing, where there are discrepancies in the evidence given by the plaintiff and that given by the defendants, I prefer the evidence of the defendants, unless otherwise indicated.

The Issues

[154] The issues for determination by this Court are as follows:

A. As regards the corporate defendants:

1. Whether the plaintiff received reasonable pay in lieu of notice on termination.

2. Whether any monies are owing by the defendants, or any of them, to the plaintiff following his termination from employment.

3. Whether there was any intentional or negligent infliction of mental suffering on the plaintiff by the defendants, or any of them.

4. Whether the plaintiff is entitled to any short-term or long-term disability benefits.

5. Whether the plaintiff mitigated his damages from the wrongful dismissal.

6. Whether the plaintiff is entitled to aggravated and punitive damages.

7. Whether the common employer doctrine applies.

B. As regards Lesley Gazarek personally:

1. Whether she caused any intentional or negligent infliction of mental suffering on the plaintiff.

2. Whether, as a result of her conduct, aggravated or punitive damages are owed to the plaintiff.

Analysis

Did the Plaintiff Receive Reasonable Pay In Lieu Of Notice

[155] An employer is free to terminate an employee without cause but with proper pay in lieu of notice. Mr. Nielsen was terminated without cause given the fact that the dealership was forced to close.

[156] The issue is whether he received reasonable pay in lieu of notice upon termination. As indicated above, he received eight weeks’ notice pursuant to the provisions of the Employment Standards Act, 2000, S.O. 2000, c. 41. Counsel for the plaintiff submits that the appropriate notice in the circumstances of this case is one year. The plaintiff claims damages for wrongful dismissal in the amount of one year's notice or $55,000.

[157] Reasonable notice allows employees a reasonable period of time to find replacement work. Damages for dismissal without reasonable notice are designed to compensate employees for the losses incurred during the period of reasonable notice – the amount of wages and benefits that they would have earned had they been permitted to serve out the notice. See Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (CanLll), 329 O.A.C. 284 para. 16, leave to appeal refused, [2015] S.C.C.A. No. 140; Taggart v. Canada Life Assurance Co., 2006 5345, 50 C.C.P.B. 163 (Ont. C.A.) para. 13; Sylvester v. British Columbia, 1997 CanLII 353 (SCC), [1997] 2 S.C.R. 315, 1997 CanLll 353 (SCC), at para 1.

[158] In determining reasonable notice, the principles laid down in Bardal v Globe & Mail Ltd., 1960 CanLII 294 (ON SC), 1960 CarswellOnt 144, 24 D.L.R. (2d) 140 are applicable. The court stated as follows:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience training and qualifications of the servant.

[159] Mr. Nielsen had worked at Saturn since March 2008. He had previously worked at Sheridan from 2000 and had been told by Lesley Gazarek that his seniority at Sheridan would be transferred to Saturn, despite the fact that the two dealerships were separate, independent businesses, and seniority would not simply have been transferable from Sheridan to Saturn.

[160] His position was non-managerial at both Sheridan and Saturn. He had worked at Sheridan as a junior service advisor until December 5, 2000, when he was made a service advisor, a position in which he continued until his termination from Saturn in 2009. His position as service advisor was non-managerial. He had no supervisory responsibilities.

[161] When he left Saturn, he had a part-time position at Sunnybrook, which he had secured in light of the dealership's "imminent closure". Following notice on May 19, 2009 of the closure of Saturn Saab, he obtained a position at Sunnybrook and commenced work on June 17, 2009.

[162] As regards "availability of similar employment", there was no evidence as regards circumstances generally in the automobile servicing industry. Based on the evidence, it is clear that GM was ceasing operations and closing dealerships in Canada. Also based on the evidence of the defendants, which I prefer over that of the plaintiff in this regard, it appears that staff from Sheridan and Saturn Saab were leaving in early 2009 to join other dealerships. It appears from that evidence that there were positions available at dealerships other than GM and Saab dealerships, such that there was availability of similar employment.

[163] There is no evidence to suggest, and it was not argued, that the plaintiff was terminated for just cause. I am satisfied, based on the evidence, that he was not terminated either because of the work done for family members at a discount without approval, nor because he failed to show up for work on a number of occasions in 2009. Just cause was not argued, although these two issues were argued in the context of the alleged abusive treatment and infliction of mental suffering by the defendants on the plaintiff, which are dealt with at paragraphs 170-178, below.

[164] The evidence indicates that he was terminated in the final closure of the dealership business, along with the rest of the other employees still remaining at Saturn Saab of Pickering, following notice from GM that the Saturn and Saab dealerships were to be discontinued in Canada, and following notice received by Saturn Saab of Pickering from GM that the Saturn Saab of Pickering dealership would not be continued. While there is some evidence to indicate that the dealership attempted to obtain dealerships with other makes of vehicle, these efforts were unsuccessful and the dealership was forced to close. The employees were all given eight weeks working notice pursuant to the Employment Standards Act, although it appears that the dealership closed after four weeks.

[165] It was the evidence of both Gerald Gazarek and Lesley Gazarek that there was widespread knowledge of the GM dealership closures in Canada in the media from late 2008. It was further their evidence that employees were aware of the intended closures and some had begun to leave the businesses in early 2009. As other GM dealerships in the Toronto area began to close voluntarily or go bankrupt in the spring and early summer of 2009, the employees at Sheridan and Saturn were well aware of the potential risks, as the area dealerships were known to them and there was purchase of parts, and thus communication, among the dealerships.

[166] Nevertheless, in determining reasonable notice, economic circumstances of an employer are not a proper consideration in determining the length of notice to which an employee is entitled upon termination: Michela v St. Thomas of Villanova Catholic School, 2015 ONCA 801.

[167] I am of the view that the four months given pursuant to the Employment Standards Act as pay in lieu of notice would have been reasonable in all of the circumstances, taking into consideration the Bardal factors and the amount of time he had worked at Saturn Saab. However, based on the evidence adduced, Ms. Gazarek had stated, verbally and in writing, that his seniority at Sheridan would be recognized at Saturn Saab. Therefore, in determining reasonable pay in lieu of notice in this case, I am mindful of that evidence and Ms. Gazarek's undertaking regarding seniority, and therefore find in the all of the circumstances, also taking into account the Bardal factors, that the plaintiff is entitled to reasonable notice of 20 weeks, less the amounts already paid by Saturn Saab, and subject to my findings on mitigation set forth at paragraph 194, below.

Are There Are Any Monies Owing to the Plaintiff Following His Termination

[168] The plaintiff testified that there were instances in which he believed he had not been paid the proper bonus for his performance and adduced in evidence monthly pay statements to support that allegation. Ms. Gazarek testified that in the normal course, if an error had been made in calculation of monthly bonuses, the employee would advise the supervisor, and if indeed there had been an error, it would be corrected at that time or in the next pay cheque. The plaintiff stated that on one occasion, he brought to Mr. Waterman's attention what he believed to be an underpayment of bonus, which was rectified. Other than this one incident, and the monthly statements which remained unexplained and unclarified as regards errors or rectification thereof, there was no sufficient documentary evidence to support the plaintiff's allegations of underpayment. Accordingly, there is no sufficient evidence on which to base an award for any unpaid bonuses.

Is the Plaintiff Entitled to Damages for Intentional or Negligent Infliction of Mental Suffering

[169] I am of the view that there was no intentional or negligent infliction of mental suffering established by the plaintiff as against the defendants, or any of them, and therefore the plaintiff is not entitled to any compensable damages.

[170] As regards allegations of intentional infliction of mental suffering, it was the evidence of the plaintiff that Rick Waterman told him that Lesley Gazarek had said he should resign. His testimony as regards his explanation of the comments regarding resigning allegedly made by Ms. Gazarek are found at paragraphs 66-68, above. He also testified that he was made to feel stupid. Further, he testified that colleagues told him to watch his back, as he was being set up by Mr. Waterman. No evidence from Mr. Waterman or any colleagues was called to substantiate this evidence. Ms. Gazarek denied the statements attributed to her by the plaintiff. I find the plaintiff's evidence regarding the comments about resigning to lack credibility. This evidence was vague, lacked detail, and changed under cross examination. I prefer the defendant's evidence in this regard.

[171] The plaintiff alleged that the defendants, by their conduct towards him, made him ill. This included their treatment of the issues regarding his father's vehicle repairs and the accusations of "fraudulent act", as well as comments regarding his resigning. He stated in cross-examination that he first had a conversation with Ms. Gazarek in June of 2009, when he considered the work environment was becoming "unsafe"; when he began to feel threatened, due to having been accused of theft. In examination in chief, he testified that his medical issues began after he received the letter from Ms. Gazarek regarding his father's vehicle, accusing him of a fraudulent act. In cross-examination, he testified that his illnesses would have started in about June of 2009. After he received the letter about his father's vehicle from Lesley Gazarek dated August 12, 2009, which accused him of a fraudulent act, he began to feel nauseated, sick, afraid.

[172] The incident regarding servicing and repairs of the father's vehicle are summarized above paragraphs 39-46, 85-86 and 132-138. The plaintiff produced some 50 to 60 work orders, which had been done for family members, friends and other employees of the dealership to support his contention that such discounts were regularly given. I do not accept plaintiff's explanation that discounts were commonly given to family, friends and customers without approval and he had done it on many occasions, without ever having anyone tell him it should not be done. I do not accept his evidence that after he put work orders on Mr. Waterman's desk, which he understood Mr. Waterman would review and approve, if he heard nothing further from Mr. Waterman, this constituted approval. I do not find that his evidence makes business sense.

[173] I accept the evidence of Gerald Gazarek and Lesley Gazarek as regards the policy in their respective dealerships regarding discounts. The evidence of the defendants was that the dealership policies did provide for a discount as regards employees. However, they did not include a policy of discounts without approval of management as regards any individual other than employees. Indeed, as the defendants indicated, a business could not succeed if discounts were given across the board, labour and parts were deeply discounted, in some cases, as in the plaintiff's parents' case, to zero, and cars were released without payment or a payment plan. The plaintiff seemed to lack an understanding of the financial realities of business in this regard.

[174] While the plaintiff complained of feelings of intimidation, fear, anxiety, stress, depression, nausea, migraines and anger issues arising from the employment situation, there is no medical evidence of any of this. Indeed, the only medical evidence adduced was the medical note from the walk-in clinic dated June 29/09 (signed by "Marlene Grundy for Dr. H Petroff) which stated that "Christopher was off work June 27/09 & June 29/09 for medical reasons. He will return July 2/09." While he testified that he had seen his doctor a number of times regarding these problems, no medical evidence, clinical notes or records were produced.

[175] He stated that these problems affected his family life and home life and that people were telling him that he was not the same person. However, no witnesses were called, including no family or close friends, to corroborate this. He stated in cross-examination that he was not prescribed any medication.

[176] He stated that, due to his medical complaints, he had been advised by the doctor not to work, and he was absent from work on several occasions. While he failed on a number of occasions to attend for work at Saturn during that time, he did work at Sunnybrook. When asked in cross-examination whether he had worked those days at Sunnybrook, he stated that "it's possible. I can't recall", then he qualified his answer by stating that the doctor at the walk-in clinic had advised him to "take time off from where you are feeling uncomfortable and threatened", so that he had not worked at Saturn Saab, which appeared to be causing the problems, but that he was able to work at Sunnybrook. The evidence did indicate that he worked at and was paid by Sunnybrook on those days missed at Saturn Saab. He further testified in cross-examination that despite the fact that he described his work environment as abusive, indicated that it had caused him an inability to sleep, had caused migraines, stress and nausea, and stated that he was having issues with his pay, he intended to stay there for many years.

[177] Based on the evidence and the foregoing, I find that the plaintiff has not established a claim for intentional or negligent infliction of mental suffering. Accordingly, I dismiss this portion of the plaintiff's claim.

Is the Plaintiff Entitled to Any Short-Term or Long-Term Disability Benefits

[178] While the plaintiff claimed for benefits in his statement of claim, and his lawyer, in his correspondence placed in evidence, inquired about disability benefits, this was not seriously argued at trial.

[179] While the plaintiff failed to attend for work on several occasions, and attributed this to illness, he did work at Sunnybrook on those days, based on the evidence adduced. As stated above, there was no medical evidence, clinical notes or records or hospital records to substantiate any illnesses related to the alleged stresses of the plaintiff's work environment. There appears to have been no application for benefits, nor any request for such. Accordingly, there is no evidence on which to base any order regarding benefits.

[180] I find that the plaintiff is not entitled to any short or long-term disability benefits. This portion of the plaintiff's claims is dismissed.

Has the Plaintiff Mitigated His Damages

[181] Counsel for the plaintiff submits that the plaintiff has made reasonable efforts to mitigate his damages.

[182] The plaintiff seeks to have this case assessed as a case of "one-man-two jobs", such that any amounts earned from the Sunnybrook job would not be deducted from an award of damages. In the alternative, counsel for the plaintiff submits that only the additional amounts earned from Sunnybrook after termination and during the notice period should be deducted from the award, which he calculates to be in the amount of $1,879.48 per month.

[183] The plaintiff argues that he had an existing part-time job at Sunnybrook at the time of his termination. He relies on the cases of Dominion Stores Ltd v R.W.D.S.U., Local 414, 1976 CanLII 2168 (ON LA), 1976 CarswellOnt 1447, 12 L.A.C. (2d) 315 and Watson v Summar Foods Ltd., 2006 Carswell Ont 7062 for the proposition that continuing part-time employment is non-deductible when performing a calculation regarding mitigation. Counsel for the defendants submit that the plaintiff has failed to mitigate his damages; that he made no reasonable efforts to obtain other work to replace his job at Saturn Saab, instead increasing his hours at Sunnybrook and taking more training for his work there.

[184] Counsel maintains that this is not a situation of "one-man-two jobs", as the Sunnybrook position was not a long-standing, continuing second part-time job. Rather, he submits that the plaintiff secured a part-time job at Sunnybrook in June of 2009, one month after receiving written notice that the dealership would be closing by year end, and the dealership ultimately closed on October 8. The job at Sunnybrook was obtained in that context.

[185] The plaintiff is entitled to damages for pecuniary loss naturally flowing from a breach. However, the plaintiff must take all reasonable steps to mitigate the loss consequent on the breach and cannot claim any part of the damage which is due to his neglect to take such steps: Red Deer College v Michaels et al, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324, (1975) 57 D.L.R. (3d) 386. In other words, a wronged plaintiff is entitled to recover damages for the losses suffered, but the extent of such losses may depend on whether the plaintiff has taken reasonable steps to avoid their unreasonable accumulation: Dominion Stores Limited v R.W.D.S.U., Local 414, supra. The onus is on the

employer to prove that the employee failed to take reasonable steps to find comparable employment: Beatty v Best Theratronics Ltd, 2015 ONCA 247, 2015 CarswellOnt 5254.

[186] Counsel for the plaintiff submits that in the circumstances of this case, the one-man two- jobs line of cases is applicable such that income earned from the continuing part-time job at Sunnybrook, which pre-existed the termination from Saturn, should not be deducted from any income earned in mitigating the full-time job at Saturn. If that theory were to be applied, the plaintiff's part-time job with Sunnybrook and the training efforts related thereto do not relieve the plaintiff from obligations to act reasonably in finding an alternate, full-time position. However, the plaintiff appears to have merged his efforts, applying his mitigation efforts regarding full-time employment to his part-time job and, after the first four months, only taking courses to increase his possibilities at Sunnybrook. I note, as regards the continuing part-time position with Sunnybrook, that it was only secured in June of 2015, one month after receiving notice that the dealership would be closing permanently by year end. While the plaintiff maintains that it was only secured as the means to supplement his primary income, I am of the view that he sought this alternate employment with Sunnybrook, which could become permanent, full-time employment, having seen the "writing on the wall" regarding the dealership's "imminent closure”. His letter sent fallowing denial of time off on June 17-19, 2009, as well as his lawyer's letter of August 20, both support this. I do not accept the plaintiff's evidence that Sunnybrook was only a part-time second job and that he fully intended to secure a primary job, as his own efforts are inconsistent with this position.

The plaintiff adduced a summary of his efforts to secure employment. The dealership closed on October 8. The summary indicates that as at October 1, the plaintiff increased his availability at Sunnybrook in order to pick up more shifts. On November 24, he contacted Peter White at Boyer Chevrolet for a position as senior service advisor and Sergio Ronco at Gus Brown also for a senior service advisor position. I note that he had never progressed to the position of senior service advisor at Sheridan or Saturn and, therefore, had never held that position previously. He testified that he did not make application to either dealership, but simply contacted these people, as he knew them. On December 4, 2009, he contacted Norm White at City Buick also for a senior service advisor position. Again, he did not submit an application, but only contacted Mr. White, as he knew him.

[187] On February 1, 2010, he contacted Universal Studios for any type of position. There is no explanation as to why he contacted Universal Studios. Subsequently on February 16, 2010, he contacted LakeRidge Health for an environmental services full-time position, and on February 19, 2010 contacted Women's College Hospital for any type of position. Again, his evidence is that he contacted people at these health facilities, but did not make a formal written application.

[188] Those six contacts constitute his efforts to find other full-time employment. He made no efforts to find alternative work outside Sunnybrook after the first four months.

[189] All other efforts were directed at receiving additional training at Sunnybrook. On December 2, 2009, he received training in patient transport to become a porter. On June 4, 2010, he received training in MRI at Sunnybrook. On June 14, he received training on the auto scrubber and tow motor at Sunnybrook. On July 9, he received operating room training and on July 12, training at the burn unit at Sunnybrook. On July 16, he became a part-time supervisor for every weekend, projects and relief at Sunnybrook. On October 20, 2011 through March 28, 2012, he was enrolled in the correspondence course in Environmental Services, Level II and received his certificate on May 2, 2012. On January 17, 2012, he became a certified trainer for Lifttow. From March 21, 2012 to June 21, 2012, he took the Supervisory Leadership Development Program and became certified on June 21, 2012. On March 31, he became a full-time supervisor in the Department of Environmental Services & Support Services.

[190] I do not find that the plaintiff's actions and conduct following termination support the plaintiff's theory, advanced at trial, that this was a "one-man-two job" situation. I do not find that the plaintiff used all reasonable efforts to find another full-time position. Indeed, while he may have contacted six people in the first four months, he submitted no applications and adduced no evidence as regards any serious efforts to locate a full-time position.

[191] Indeed, all of his efforts starting on December 2, 2009 were aimed at taking courses which would advance his career at Sunnybrook and provide him with full-time work there. In the interim, he worked extended hours at Sunnybrook on a part-time basis.

[192] I find that the plaintiff failed to mitigate his damages. The defendants should not be responsible for the full extent of damages suffered by the plaintiff due to his own inaction in making reasonable efforts to secure a new full-time job. This has been taken into account in this decision. The award of 20 months’ pay in lieu of notice is to be reduced by the amounts received from Saturn Saab as indicated at paragraph 179, supra, as well as reduced by the amounts received from Sunnybrook during the notice period.

Is The Plaintiff Entitled To Aggravated And Punitive Damages

[193] Punitive or exemplary damages are designed to punish and deter. Conduct that would warrant an award of punitive damages can be characterized as "deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature": Vorvis v Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] 1S.C.R. 1085; Whitten v Pilot Insurance Co., 2002 SCC 18, 1 S.C.R. 595. Aggravated damages are awarded to compensate the plaintiff for mental distress and humiliation when a defendant's motives and conduct have aggravated the plaintiff's injuries.

[194] The plaintiff alleges that the conduct of the defendants in accusing him of theft, in making him feel inadequate or stupid, in suggesting he should resign and in their conduct and treatment of their staff, including the plaintiff, generally, caused him stress and mental anguish and merit an award of punitive and aggravated damages.

[195] I am not convinced by the plaintiff's evidence in this regard. I do not find his recounting of facts and incidents to be credible. I prefer the evidence of the defendants as regards their conduct, their treatment of their staff, including the plaintiff, and their explanation as regards the repairs to his father's vehicle and the use of the term fraudulent act. I do not accept the plaintiff's evidence as regards suggestions made by the defendants that he should resign. As regards the alleged harsh or abusive treatment that made him ill, there is no medical evidence to support any suggestion of stress and mental anguish suffered by the plaintiff.

[196] I find no harsh, vindictive, reprehensible or malicious acts on the part of the defendants, toward the plaintiff, nor any proof of such mental distress and humiliation caused by conduct of the defendants which may have aggravated the plaintiff's alleged injuries such as would merit an award of punitive and/or exemplary damages.

[197] For all of the above mentioned reasons, I do not find that the plaintiff has established any entitlement to aggravated or punitive damages owing to him by the defendants, or any of them.

Does the Common Employer Doctrine Apply

[198] The central issue is whether Gazarek Realty has any liability to the plaintiff as a common employer, given that Saturn Saab has no assets. Based on all of the evidence, I am of the view that the common employer doctrine does not apply to the facts of this case.

[199] The common employer doctrine is set forth in Stacey Reginald Ball's text, Canadian Employment Law, Rel. 44, vol. 1 loose leaf (Markham: Canada Law Book, 2011) 4-1 as follows:

The courts now recognize that, for purposes of determining the contractual and fiduciary obligations which are owed by employers and employees, an individual can have more than one employer. The courts now regard the employment relationship as more than a matter of form and technical corporate structure. Consequently, the present law states that an individual may be employed by a number of different companies at the same time.

[200] Where two or more companies exercise control over an employee's employment, they may be considered his employer and liable for wrongful dismissal damages: Sinclair v Dover Engineering Services Limited (1987), 1987 CanLII 2692 (BC SC), [1987] B.C.J. No. 60, 11 B.C.L.R. (2d) 176.

[201] In Downtown Eatery (1993) Ltd. v Ontario, 2001 CanLII 8538 (ON CA), [2001] O.J. No. 1879, 200 D.L.R. (4th) 289 (Ont.C.A.), where a plaintiff was terminated from his employment at a nightclub, he originally sued the company that served as a "paymaster" for the employees but in subsequent proceedings, sought to recover from a number of other related companies involved in the night club operation, including one company that owned the premises, another that owned the trademark and licenses, a third that owned the chattels and equipment, and the company that acted as paymaster. The court found that there was a "highly integrated or seamless group of companies which together operated all aspects of the… nightclub", and that all companies in the consortium could be considered as common employers and liable for the plaintiff's claim. The court was concerned that a complex corporate structure not be permitted to defeat the legitimate entitlements of wrongfully dismissed employees.

[202] The issue in the common employer cases is where effective control over the employee resides.

[203] The corporate defendants in this case were also sued by David Asselin, who served as a witness for the plaintiff in this action: see Asselin v. Gazarek et al., 2011 ONSC 5871. In that case, in which the issues were essentially the same, Conway J. found that Gazarek Realty was not a common employer and had no liability to the employee plaintiff. She found that there was no connection between the employee and Gazarek Realty.

[204] As regards the issue of common employer, Conway J found as follows:

15. As mentioned, Gazarek is a real estate holding company owned by Gerald that leases the property to the dealerships at market rental rates.

16. Gerald testified that 15 years ago, his accountant advised him that for tax reasons it would be advantageous to have Gazarek pay the salaries of the managers and the dealerships. Since that time, Gazarek has paid the managers, issued the T4 slips and made the government remittances. The dealerships reimbursed Gazarek for the payroll – it was a revenue neutral arrangement for Gazarek. There is no evidence or suggestion that there was anything improper about this arrangement.

17. Gazarek has no employees. While Gazarek paid and was reimbursed for the managers' salaries, it had nothing to do with the dealership operations. It did not hold meetings, sign any dealership agreements with General Motors, or have any involvement with the operations.

18. Gazarek was not a shareholder of either, nor did those companies own shares of Gazarek. There is no evidence that Gazarek had any financial interest and or received any profits or payments from Sheridan or Saturn (other than rent and reimbursement of the managers' salaries)

19. There are three difficulties with Mr. Asselin's position.

20. The first is that there was no connection between Mr. Asselin and Gazarek. Mr. Asselin worked for Saturn or Sheridan and was paid by them. This is not a case where he worked for one company and was paid by the other (as in Dover Engineering Services Ltd.), that both companies could be considered his employer. That might possibly have been an argument for a dismissed manager to make, but not for Mr. Asselin. It is too remote.

21. Second, Gazarek exercised no control over Mr. Asselin through the managers. Gazarek paid the managers and was reimbursed for those payments. Any control over and supervision of the managers was exercised at the dealership level – the evidence on that point is uncontradicted. Gazarek did not direct the managers in the performance of their duties. It held no meetings with them. The managers were not accountable to Gazarek. If Gazarek exercised no control over the managers, it is difficult to see how it indirectly exercised control over Mr. Asselin's employment.

22. Third, this is not a case such as Downtown Eatery (1993) Ltd. where the operations of the single business were run by a highly interconnected group of companies such that it would have been unfair to limit the plaintiff's recovery to the one company that actually employed him. The evidence in this case is that Saturn and Sheridan owned and operated their respective dealerships. They had dealership agreements with General Motors, they had their own employees and managers, they had their own directors and officers, and they made their own decisions.

23. The mere fact that Gazarek leased the land to the dealerships would not have been sufficient for me to conclude that it operated the dealerships as part of an integrated group with the other two companies and was therefore liable to all dealership employees. Does the one additional fact that Gazarek paid and was reimbursed for the management salaries (in a revenue neutral arrangement) make a difference and change that result? In my view, it does not. It is simply not enough to characterize Gazarek as part of an integrated group that collectively controlled Mr. Asselin's employment.

[205] Counsel for the plaintiff argues that the Asselin decision can be distinguished from the present case, as, in that case, there was no documentary evidence but only the viva voce evidence of the parties and witnesses. He argues that in this case, there is voluminous documentary evidence upon which the common employer doctrine can be determined.

[206] He urges this Court to find common employers on the basis of the T4 forms issued by Gazarek Realty to the managerial staffs of both Sheridan and Saturn Saab (although I note not to the non-managerial employees, such as the plaintiff, whose pay stubs and T4 forms were issued by Saturn Saab), the fact that Great West Life issued insurance statements regarding employees under the heading of Sheridan, the in-house accountant for Sheridan was sublet to Saturn and also did work for Gazarek Realty, the three corporations all used the same independent accounting firm for preparation of annual financial statements and income tax returns, and all three corporations used the same lawyer. He also argued that there were numerous transfers at the end, among the three corporate defendants, which would suggest closely affiliated companies which potentially attempted to shelter the monies.

[207] As regards the payroll structures for the dealerships and the subletting of the accountant, I note that the evidence indicates that both were suggested by their professional accounting firm. The paychequer system for managerial staff was, according to the evidence, done for tax purposes, and the subletting of professional accounting services, as a cost-saving measure.

[208] As regards the T4 forms, I firstly note that the plaintiff was a non-managerial employee who was paid by Saturn Saab of Pickering. It was only the managerial staff who were paid through Gazarek Realty and the evidence indicates that the relevant company, either Sheridan or Saturn, repaid the amounts paid out by Gazarek Realty for their respective managerial staffs. I do not find the T4s regarding managerial staff to support the plaintiff's theory of common employer.

[209] As regards the benefit statements issued by Great West Life, there was no evidence adduced one way or the other to indicate how the benefits packages were structured. I do not find this documentation from a third-party benefits insurer to be adequate, without any explanation, to substantiate the plaintiff's theory that the common employer doctrine should apply to the corporate defendants. As a result, I make no definitive finding on this basis. I do note the document, in evidence, entitled Revise Employee Confirmation from GWL, issued as regards Christopher Neilsen [sic] Re: Pickering Auto Mall, effective March 1, 2008, when the plaintiff moved to Saturn Saab, indicates that GWL's records were changed when the plaintiff left Sheridan. This would appear to indicate that GWL, distinguished between the two dealerships. However, again, without clarification of the structuring of the benefits packages, the evidence is not sufficient to make any determination.

[210] As regards the in-house accountant, the evidence was that his services were sublet to Saturn, which paid for those services. It was explained that this was a cost-saving measure recommended by the accountant. I accept that evidence. As regards the independent accounting firm and the lawyer used by all three companies, I do not find this to be sufficiently determinative of the issue of common employer.

[211] The evidence was that the companies were separate, had separate annual financial statements and income tax returns prepared, that the plaintiff was paid by Saturn, that Sheridan and Gazarek exercised no control over the plaintiff, whose supervisor was an employee at Saturn, the owner of which was Lesley Gazarek. Saturn and Sheridan owned and operated their respective dealerships separately, each had separate owners, those owners each had a dealer principal agreement with General Motors separate from one another. There was no evidence adduced to suggest that effective control over the plaintiff, as non-managerial employee of Saturn Saab, resided with anyone other than Saturn Saab.

[212] As regards the transfers of money seen in the banking records during the summer of 2009, from Saturn Saab to Gazarek Realty and Sheridan, I am satisfied, based on the testimony of Mr. Gazarek, that the amounts transferred were for repayment of loans and obligations. Gazarek Realty was the landlord and the dealerships paid rent and taxes. Gazarek Realty also served as the paychequer for each of the dealerships' management staff salaries and was reimbursed for the salaries it distributed by the respective dealerships. Finally, Sheridan sublet its accounting department to the other businesses, for which it was repaid by those businesses. Thus, there were funds transferred among the businesses on a regular basis. I do not find the transfers relied upon by the plaintiff to be determinative.

[213] Based on the evidence of the defendants, I am satisfied that at the end, when the dealerships were closing, Gazarek Realty also covered for the dealerships, particularly Saturn Saab when they were having financial difficulties, covering rent, heat, light, taxes and other expenses as necessary on the basis of a loan which was to be repaid when possible, and as monies from the liquidation of assets and amounts owing were received.

[214] I do not find that the defendant companies were inseparably intertwined as plaintiff's counsel urges. Nor, for the reasons set forth herein, do I find that the evidence demonstrates an interconnection and commonality of operations and commercial purposes sufficient for a finding of common employer. According to the testimony of Gerald Gazarek and Lesley Gazarek, which I prefer over that of the plaintiff, Mr. Gazarek did not have a presence at Saturn Saab, nor did he control it, nor have control over the plaintiff, either as principal of Sheridan or Gazarek Reality. The plaintiff was employed by Saturn Saab.

[215] The plaintiff testified that when he moved to Saturn, he was assured by Mr. Gazarek that both Sheridan and Saturn were the same businesses. The defendants denied this. The evidence was that the plaintiff was concerned that he would not have seniority upon moving to Sheridan, nor the same salary or bonus structure. Thus, it would appear that he viewed the dealerships as separate. When he went to interview for the position with Saturn, he requested that a document be created setting forth the terms of his employment with the new company, which was done. I do not accept the plaintiff's argument that the dealerships were portrayed by the defendants as being the same business.

[216] Based on the foregoing, I reject the plaintiff's assertion that the common employer doctrine applies to the facts of this case. I do not find there to be evidence to support this allegation.

Whether the Defendant, Leslie Gazarek Caused Intentional or Negligent Infliction of Mental Suffering on the Plaintiff for Which Damages Should Be Granted.

[217] I make the same observations made at paragraphs 171-178, above.

[218] While the plaintiff complained of feelings of depression, nausea, migraines and anger issues arising from the employment situation, there is no medical evidence of any of this. Indeed, the only medical evidence adduced was the note, from a walk-in clinic, above-mentioned, which was not signed by the doctor he consulted. He stated that these problems affected his family life and home life and people were telling him that he was not the same person. However, no witnesses were called, including no family or close friends, to corroborate this. He stated in cross-examination that he was not prescribed any medication.

[219] While he stated that, due to his medical complaints, he had been advised by the doctor not to work, he qualified this in cross-examination by stating that the doctor had indicated that he was not to work at Saturn, which appeared to be causing the problems, but that he was well enough to work at his part-time job at Sunnybrook, which he did.

[220] It is the position of the plaintiff that Lesley Gazarek's conduct toward him caused him great mental anguish. He pointed to the alleged comments made by her that he should resign, as set forth at paragraphs 66-68 and 171, above. As I have indicated, given the circumstances and lack of detail in his evidence, and the inconsistencies in his testimony, I do not accept his evidence as regards these comments, and prefer the evidence of the defendants on this point.

[221] The plaintiff further relied on the evidence regarding Ms. Gazarek's handwritten comments made on a copy of the letter received by her from the plaintiff's lawyer. He stated that this also caused great mental stress and anguish. As Ms. Gazarek testified, this was not her proudest moment. I accept that she was under significant stress at that time, given that she was facing the loss of her dealership. While her response was unfortunate, I do not find that it was sufficient to merit damages for intentional or negligent infliction of mental suffering. Again, there was no medical evidence adduced to support this claim. I find no basis for an award of damages for intentional or negligent infliction of mental suffering.

[222] Accordingly, I dismiss this portion of the plaintiff's claim.

Whether The Plaintiff Is Entitled To Aggravated And Punitive Damages Due to the Conduct of The Defendant, Lesley Gazarek.

[223] I reiterate the comments and findings made at paragraphs 195-199, above. For the same reasons above-stated, I find no basis for an award of aggravated or punitive damages against Ms. Gazarek personally.

Conclusion

[224] Based on the Bardal factors and also taking into account the statement regarding seniority made by Ms. Gazarek, as set forth at paragraph 116, above, the plaintiff is entitled to 20 additional weeks of pay in lieu of notice, less the amounts already paid by Saturn Saab, and the amounts earned from Sunnybrook during the notice period.

[225] All other aspects of the plaintiff's claim are dismissed.

Costs

[226] I would urge the parties to agree upon costs, failing which I would invite the parties to provide any costs submissions in writing, to be limited to three pages, including the costs outline. The submissions may be forwarded to my attention, through Judges’ Administration at 361 University Avenue, within thirty days of the release of this Endorsement.

Carole J. Brown, J.

Released: March 16, 2016

CITATION: Nielsen v. Sheridan Chevrolet Cadillac Ltd., 2016 ONSC 1843

COURT FILE NO.: CV-10-00396151

DATE: 20160316

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Christopher Nielsen

Plaintiff

– and –

Sheridan Chevrolet Cadillac Ltd., Gazarek Realty Holdings Ltd., Lesley Gazarek and The Pickering Auto Mall Ltd.

Defendants

REASONS FOR JUDGMENT

Carole J. Brown, J.

Released: March 16, 2016