CITATION: Fermin v. Intact Financial, 2016 ONSC 5631
COURT FILE NO.: CV-15-542692
DATE: 20160914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERRIE FERMIN
Plaintiff
– and –
INTACT FINANCIAL CORPORATION
Defendant
Robert Lilly, for the Plaintiff
Jennifer Heath and David Witkowski, for the Defendant
HEARD: July 7, 2016
REASONS FOR JUDGMENT
A.j. o’marra j.
[1] The plaintiff Cherrie Fermin has moved for summary judgment against the defendant, Intact Financial Corporation, for wrongful dismissal. The parties agree that this is a matter appropriate for summary judgment.
[2] Ms. Cherrie Fermin commenced employment with a predecessor of Intact Financial Corporation on August 4, 1994. During her employment with Intact, the plaintiff held a number of claim adjustor positions. At the time of her dismissal, November 24, 2015, she was employed as a Claims Representative II, an intermediate level position, working at the defendant’s office in Mississauga, Ontario. She was engaged in adjusting automobile insurance claims exclusively.
[3] At the time of her termination, Ms. Fermin’s compensation consisted of an annual base salary of $53,349.00 and enrollment in Intact’s group benefit plan and defined benefit pension plan.
[4] In terminating her employment the defendant provided her with the minimum notice entitlements under the Employment Standards Act, 2000 – 8 weeks’ pay and benefits, together with 21 weeks of statutory severance pay.
[5] Ms. Fermin had worked for the defendant for 21 years, 3 months.
[6] Subsequent to termination, the defendant provided the plaintiff with access to career transition counselling through Lee Hecht Harrison Knightsbridge (Knightsbridge) with access to the following services:
• Career Resource Network, which provided resources for e-learning courses and programs, sample interview questions as well as opportunities for the subject to videotape him or herself in an interview situation with feedback from a consultant.
• One Source, which allows the subject to search information on prospective employers to assist in preparing for interviews.
• Skill Soft Titles, which provides an opportunity for the subject to prepare for certifications or to increase competencies in various software programs or other skills.
• Various candidate network opportunities.
• Social media strategies as to how to market oneself on social media.
[7] The position of the plaintiff, as a 52 year old with more than 21 years of service with the defendant, is that she is entitled to 19 to 21 months’ compensation in lieu of notice, and in support relies on the cases set out in Appendix A to these reasons.
[8] The defendant’s position is that the notice period should not exceed 15 months for a mid-level administrative employee without any managerial or supervisory responsibilities, and relies on cases set out in Appendix B. However, the defendant submits that if her position is considered to be more technical in nature, then the notice period should not exceed 16 months, referring to the cases set out in Appendix C.
[9] While the defendant does not challenge the plaintiff’s entitlement to a pro rata base salary over the course of a reasonable notice period, the defendant submits that the court should reduce the notice period by ten percent for what it considers her failure to take reasonable steps to mitigate her damages. The defendant also acknowledges that the plaintiff is entitled to either continued benefit coverage and participation in Intact’s pension plan, or damages equivalent to Intact’s cost of the benefits and pension.
[10] Reasonable notice must be decided in reference to the particular facts of each case, having regard to the non-exhaustive factors set out in Bardal v. Globe and Mail Ltd. (1960), 1960 294 (ON SC), 24 D.L.R. (2nd) 140 (H.C.) at p. 145:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of notice must be decided with reference to each particular case, having regard to the character of 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.
[11] Ms. Fermin is now 52 years of age and was employed by the defendant for over 21 years. The older the employee and the longer the service are relevant considerations in assessing the appropriate notice period. As noted in Drysdale v. Panasonic Canada Inc., 2015 ONSC 6878 at para. 13:
Generally, a longer notice period will be justified for older long term employees who may be in a competitive disadvantage securing new employment because of their age.
[12] In terms of the age factor, in McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229 at para. 92, La Forest J. observed: that
Barring specific skills, it is generally known that persons over 45 have more difficulty in finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills. Their difficulty is also influenced by the fact that many in that age range are paid more and will generally serve a shorter period of employment than the young, a factor that is affected not only by the desire of many older people to retire but by recruitment policies both in the public and private sectors.
[13] The defence argues that while age and length of service are relevant considerations in this case, they should not lend themselves to an increased notice period. Firstly, as to age, the presumption that the plaintiff would have difficulty securing other work because she is over 45 is really not applicable to the insurance industry because her specific skills and experience would be welcome. Secondly, with respect to the length of her employment, the defendant argues the one-month-per-year of service “rule of thumb” approach she appears to favour as to the appropriate notice period has been specifically discounted by the Ontario Court of Appeal in Minott v. O’Shanter Development Co., 1999 3686 (ON CA), [1999] O.J. No. 5 at paras. 73-74:
Thus, in my opinion, the rule of thumb approach is not warranted in principle, nor is it supported by authority.
[14] In terms of the general character of employment, the parties are agreed that her employment at the time of termination was an intermediate level position within the organization, not managerial or supervisory. However, there appears to be some dispute as to whether her position was more administrative than technical in nature. If the latter, the range of payment in lieu should increase slightly according to the defendant, but not to the extent as suggested by the plaintiff. Many of the cases relied on by the plaintiff in which increased notice periods were awarded involved employees whose employment was managerial in nature.
[15] Her responsibilities for the adjudication of automobile insurance claims as a Claims Representative II were described in the Agreed Statement of Facts as follows:
(a) To investigate routine and moderately complex losses;
(b) To evaluate claims and setting claim reserves;
(c) Ensuring prompt and equitable settlement of claims;
(d) Negotiating with insurance claimants, lawyers and adjusters to settle claims. The plaintiff would settle claims within a range provided to her by Intact appraisers. She was required to know the intricacies of policy endorsements and fault determination rules to determine fault and waiver of deductibles and to make recommendations for coverage/off-coverage positions. Claim Representatives II have payment authority to settle claims of up to $25,000, whereas Claims Representatives I have payment authority up to $15,000;
(e) Documenting claims files by collecting and securing appropriate reports and statements from third party adjusters, claimants, witnesses and other pertinent experts to determine damage and/or liability; collecting and procuring statements and records from claimants, witnesses, adjusters, etc.;
(f) Providing customer service with respect to the claims process to both internal and external clients and answering queries relating to the claims process; and
(g) Keeping up-to-date on Intact’s insurance products, appraisal and investigation techniques and services.
[16] I am satisfied in reading the requirements of the position held by the plaintiff that it was not strictly administrative or clerical in nature. She was required to investigate and evaluate moderately complex losses, as well as to negotiate with claimants, lawyers and insurers to settle claims, with authority to settle such matters up to $25,000. She was required to know the intricacies of policy endorsements as well as fault determination rules to determine fault and waiver of deductibles and to make recommendations for coverage. I accept that hers was a position equivalent to that of a mid-level technical position, and as such, lends itself to a higher notice period – 15 to 18 months (see: Paravan v. Wellington Insurance Company, 1993 44 A.C.W.S. (3d) 282 (B.C.S.C.), Sihvo v. Finning International Inc., 2003 BCSC 484, 2003 B.C.S.C. 484, B.C.J. No. 1453, Delacruz v. Tromont Industries Ltd., [2003] O.J. No. 840, Michl v. Ferranti-Packard Transformers Co., 1986 38 A.C.W.S. (2nd) 272 (B.C.S.C.), Streight v. Dean, 2002 BCSC 399, 2002 B.C.S.C. 399 and Yachiw v. Addressograph Farrington Inc., 1986 2 A.C.W.S. (3d) 342.)
[17] The contentious issue between the parties is with respect to Ms. Fermin’s efforts at mitigation.
[18] The plaintiff has a duty to mitigate the loss of his or her employment by diligently searching for alternative employment.
[19] However, the defendant employer bears the onus of showing that the plaintiff has failed to take reasonable steps to mitigate her loss and had she taken reasonable steps she would have been expected to have secured comparable employment reasonably adapted to her abilities (see: Michaels v. Red Deer College, 1975 15 (SCC), [1976] 2 S.C.R. 324 and Link v. Venture Steel Inc., 2010 ONCA 144 at para. 73). Further, the defendant must establish that the plaintiff’s conduct in seeking to find alternative employment was unreasonable in all respects (see: Furuheim v. Bechtel Canada Ltd., [1990] O.J. No. 746 (O.C.A.), and Somir v. Canac Kitchens, 2006 42369 (ON SC), 2006, 56 C.C.E.L. (3d) 234 (S.C.J.) at para. 58).
[20] Moreover, as noted in Adjemian v. Brook Crompton North America (2008), 2008 27469 (ON SC), 67 C.C.E.L. (3d) 118 (S.C.J.) at para. 21, the plaintiff’s efforts at mitigation need not be perfect, only reasonable.
[21] From January 2016 to mid-May, the plaintiff applied to 77 positions and received 6 telephone interviews, but no job offers. She utilized the employment counselling services provided through Knightsbridge starting December 30, 2015. She attended a virtual career fair as well as participated in mock interviews and met with a Knightsbridge consultant to discuss job search strategies. She searched daily work sites for comparable positions and applied to insurance recruitment agencies. She attended job search “webinars” over the internet through January and April, 2016.
[22] In addition, the defendant’s human resources consultant provided the plaintiff with 58 job postings seeking employees with varying levels of experience. The plaintiff applied to 12 claim adjuster and related positions with no positions offered.
[23] The defendant maintains that the plaintiff has made insufficient mitigation efforts by not having applied to all of the positions suggested by its human resources professional. She limited herself to an overly narrow definition of comparable employment in not responding to all of the positions it says she could have qualified for. Further, the plaintiff, who resided in Brampton, then Toronto when she worked in the defendant’s Mississauga office, did not apply to positions available outside of the Greater Toronto Area, specifically Hamilton and Cambridge.
[24] The plaintiff notes that of the 58 postings provided by the defendant, 53 did not set out salary details, 36 related to junior entry level positions. Further, several required a Certified Insurance Professional designation (CIP), several required managerial experience, knowledge of fraud investigations and bilingual in French/English, all of which the plaintiff does not possess.
[25] The defendant contends that the plaintiff did not diligently pursue comparable employment for approximately 5 weeks following her termination on November 24, 2015.
[26] The plaintiff explained part of that period as her having been ill and that she required some “recovery time” due to the emotional impact of being terminated from long time employment.
[27] I find no merit in the position of the defendant in this instance. As noted in Robinson v. Team Copperheat-MQS Canada Inc. 2008 ABQB 409, 2008 A.B.Q.B. 409 at para. 20:
A terminated employee has the right to some “recovery time” due to the emotional impact of losing one’s job. [The plaintiff] should not be expected to immediately begin a search for a new job. The case law generally allows a 2 to 3 month period before a job search has to begin in earnest, depending of course upon what the evidence is as to emotional impact the loss of the job had on the particular employee: Chand v. Craftsman Collision Ltd., 2007 BCPC 11, [2007] B.C.J. No. 115 at para. 4.
[28] L.B. Roberts J. in Hussain v. Suzuki Canada Ltd. 2011 O.J. No. 6355, observed with respect to an employee terminated after long term employment at para. 10:
The plaintiff is allowed a reasonable period of time to get over this shock, to organize his thoughts about obtaining new employment, and to undertake the necessary research and preparation of his resumes so that he can be in a position to apply and compete for available positions: Systad v. Ray-Mont Logistics Canada Inc., 2011 Carswell B.C. 2370 (B.C.S.C.) at para. 31.
[29] The defendant argued that the plaintiff was passive and displayed a lackadaisical attitude in her job search. She used a cover letter that contained a spelling mistake (subsequently corrected), and she did not include a copy of a reference letter as described by the defendant, more aptly characterized as a confirmation of past employment, in her applications.
[30] A corrected typographical error or oversight in not including a generic job description letter in her application materials did not render her search efforts unreasonable. Similarly, in my view, to restrict her job search to areas within a reasonable commute time from her family home in a large employment marketplace with increasingly onerous commute times does not render her job search unreasonable.
[31] The mitigation efforts need not have been perfect, or even to the standards of a human resources professional, just reasonable. I do not accept that the plaintiff was “passive” in her obligation to seek alternate employment. A reduction of 10% as submitted by the defendant is not reasonable or warranted in the circumstances.
[32] The efforts of the plaintiff in searching for comparable employment have been reasonable in all respects. I am not satisfied that any of the positions suggested by the defendant to which she did not apply would have resulted in comparable employment had she applied.
[33] In my view, a reasonable notice period for Ms. Fermin is one of 16 months’ compensation plus benefits and R.R.S.P. contributions, less payments received from the defendant, Intact, under the E.S.A. I leave it to the parties to calculate the relevant amounts.
[34] In that the plaintiff has more than six months remaining in the notice period, the entire award shall be impressed with a trust in favour of the defendant. At the end of the notice period, the plaintiff shall account to the defendant any earnings obtained from new employment within the notice period so as to reduce the defendant’s obligation to pay the plaintiff.
[35] I would encourage the parties to try to settle the issue of costs of the motion. However, if they are unable to do so, plaintiff’s counsel may serve and file written costs submissions not to exceed three pages together with a Bill of Costs within 15 days. The defendant shall deliver similar responding submissions and Bill of Costs within 10 days thereafter.
A.J. O’Marra J.
Released: September 14, 2016
APPENDIX “A”
CASE
POSITION
AGE
SERVICE YEARS
NOTICE (Months)
Brien v. Niagara Motors Ltd., (2008) 168 A.C.W.S. (3d) 1000 (Ont. Sup. Ct.), Plaintiff’s Book of Authorities, Volume 2, Tab 23.
Office Manager
42
23
24
Sweeting v. Mok, 2015 ONSC 4154, Plaintiff’s Book of Authorities, Volume 2, Tab 31.
Nurse/Office Manager
52
22
24
Drysdale v. Panasonic Canada Inc., 2015 ONSC 6878, Plaintiff’s Book of Authorities, Volume 1, Tab 15.
Warehouse Worker
58
22
22
Dhatt v. Kal Tire Ltd., 2015 BCSC 1177, Plaintiff’s Book of Authorities, Volume 2, Tab 24.
Mechanic
53
23
21
Braiden v. La-Z-Boy Canada Ltd., [2006] A.C.W.S. (3d) 824 (Ont. Sup. Ct.), Plaintiff’s Book of Authorities, Volume 2, Tab 25.
Salesperson
54
23
20
Taylor v. CBHN Information Systems Ltd., [1996] 67 A.C.W.S. (3d) 296 (B.C.S.C.), Plaintiff’s Book of Authorities, Volume 2, Tab 26.
Account Manager
55
22
20
Brake v. PJ-M2R Restaurant Inc., 2016 ONSC 1795, Plaintiff’s Book of Authorities, Volume 2, Tab 27.
Store Manager
62
20
20
Birch v. Grinnell Fire Protection, [1998] 80 A.C.W.S. (3d) 1190 (B.C.S.C.), Plaintiff’s Book of Authorities, Volume 2, Tab 28.
Manager of Residential Services
51
18
20
Cox v. Habasit (Canada) Ltd., (1994) 50 A.C.W.S. (3d) 1042 (Ont. C.J. Gen. Div.) Plaintiff’s Book of Authorities, Volume 2, Tab 29.
Production Worker
51
19
19
Paravan v. Wellington Insurance Co., (1993) 44 A.C.W.S. (3d) 282 (B.C.S.C.) Plaintiff’s Book of Authorities, Volume 2, Tab 30.
Claims Adjuster
57
13
16
APPENDIX “B”
CASE
POSITION
AGE (years)
SERVICE LENGTH (years)
NOTICE AWARD (months)
Adjemian v. Brook Crompton North America (2008) O.J. No. 2238 (Ont. Sup Ct.), affirmed by 2008 ONCA 882, Plaintiff’s Book of Authorities, Volume 1, Tab 3; aff’d 2008 ONCA 882, Plaintiff’s Book of Authorities, Volume 1, Tab 4.
Technology administrator, accounts payable clerk, and inventory receiving clerk
47
22.5
16
Lee v. 1554478 Ontario Inc. (2008) 172 A.C.W.S. (3d) 130 (Ont. Sup. Ct.), Tab 1 of the Defendant’s Book of Authorities
Clerk
56
16
15
Fedele v. Windsor Teachers Credit Union Ltd. (2000) O.J. No. 2755 (Ont. Sup. Ct.), Tab 2 of the Defendant’s Book of Authorities
Teller
41
20
15
Bramble v. Medis Health & Pharmaceutical Services Inc. 1999 13124 (NB CA), [1999] N.B.J. No. 307 (NBCA), Tab 3 of the Defendant’s Book of Authorities
Accounting Clerk
41
16
13
Taylor v. Bank of Nova Scotia (1998) 37 C.C.E.L. (2d) 145, Tab 4 of the Defendant’s Book of Authorities
Senior Deposit Accounting Clerk
51
20
12
Dickson v. Royal Ottawa Hospital (1989) 23 A.C.W.S. (3d) 53, Tab 5 of the Defendant’s Book of Authorities
Patient Care Co-ordinator
57
16
12
Tannahill v. North Battleford (City) (1989) 13 A.C.W.S. (3d) 359, Tab 6 of the Defendant’s Book of Authorities
RCMP Clerk
46
23
12
Marshall v. Newman, Oliver & McCarten Insurance Brokers Ltd. (2004) 2004 15915 (ON CA), 181 O.A.C. 150, Tab 7 of the Defendant’s Book of Authorities
Customer Service Representative
52
18
10.25
AVERAGE
49
19
13
APPENDIX “C”
TAB
CASE
POSITION
AGE (years)
SERVICE LENGTH (years)
NOTICE AWARD (months)
Yachiw v. Addressograph Farrington Inc. 1986 CarswellOnt 5179, 2 A.C.W.S. (3d) 342 (Ont. Dist. Ct.)
Field Service Technician
53
30
18
Streight v. Dean 2002 BCSC 399, B.C.J. No. 819
Dental Lab Technician
45
20
16
Michl v. Ferranti-Packard Transformers Co. 1986 CarswellBC 2863, 38 A.C.W.S. (2d) 272 (BCSC)
Chief Draftsperson
56
27
16
Delacruz v. Toromont Industries Ltd. [2003] O.J. No. 840, 121 A.C.W.S. (3d) 75 (Ont. Sup. Ct.)
Wiring technician, panel shop manager, programmer and project engineer
52
20
15
Sihvo v. Finning International Inc. 2003 BCSC 484, B.C.J. No. 1453
Warranty Technician
52
25
15
Perkins v. Shuen 2006 BCSC 121, [2006] B.C.W.L.D. 2012.
Dental Assistant
55
24
12
AVERAGE
52.2
24.3
15.3
CITATION: Fermin v. Intact Financial, 2016 ONSC 5631
COURT FILE NO.: CV-15-542692
DATE: 20160914
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHERRIE FERMIN
Plaintiff
– and –
INTACT FINANCIAL CORPORATION
Defendant
REASONS FOR JUDGMENT
A.J. O’Marra J.
Released: September 14, 2016