CITATION: Doherty v. 1763952 Ontario Inc. (K4 Integration Inc.), 2016 ONSC 7159
COURT FILE NO.: C14100-15
DATE: 20161117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Timothy Doherty
Plaintiff
– and –
1763952 Ontario Inc. o/a K4 Integration Inc. and Gilles Arseneault and Marcel Houle
Defendants
Mathieu R. Ansell, for the Plaintiff
Réjean Parisé, for the Defendants
HEARD: August 4, 2016
RULING ON MOTION for summary judgment
HENNESSY J.:
[1] The plaintiff Doherty alleges he was wrongfully dismissed by his employer K4 Integration Inc. (“K4”). Both the plaintiff and the personal defendants brought motions for summary judgment in this wrongful dismissal action.
[2] The personal defendants brought the first motion for summary judgment to dismiss the claims against them alleging age discrimination against the plaintiff: see Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The plaintiff responded with a motion for summary judgment on the entire claim under Rule 20.04(2).
Background Facts and Players
[3] In December 2008, the plaintiff began his employment with a predecessor company to K4, five months after retiring from Glencore, where he had worked throughout his career as an Instrumentation technician. K4 and the predecessor company Chess Controls Inc. were owned and operated by the defendants Arsenault and Houle. Doherty transitioned seamlessly to K4 once it was incorporated in April 2009.
[4] K4 was engaged in the business of providing technical services and mining technology development. Doherty held positions which were called General Manager/Technical Director/General Manager. His starting salary at time of hire was $80,000. As of the time of termination his salary was $92, 250. Plus benefits and eight weeks’ vacation.
[5] Doherty was employed at K4 for 6.4 years. Following a number of conversations between the defendants and the plaintiff on April 4, 2015, Arsenault delivered a letter to the plaintiff stating that the plaintiff was laid off due to lack of sales growth with K4 and shortage of work. No notice of termination was provided at the time, however, ultimately K4 made a payment to the plaintiff that was the equivalent of six weeks’ net pay.
[6] The plaintiff held the positions of General Manager/Technical Director/General Manager at K4. There were 22 employees as of the date of termination.
[7] Doherty was successful in securing new employment by September 2015, for a lower salary and less vacation. His salary at hire was $78,000 with five weeks’ of vacation.
The Allegations of Age Discrimination (The Defendants’ Motion for Summary Judgment)
[8] The plaintiff contends that Arsenault and Houle together and or individually, on more than one occasion expressed or implied that by virtue of his age the plaintiff should or must consider retirement. The defendants requested particulars with respect to those allegations. None was provided.
[9] Paragraphs 28 and 29 of the Statement of Claim contain the only allegations of fact referring to the age discrimination claim. They include the following allegations:
• That at a meeting on December 17, 2014, Arsenault and/or Houle expressed or implied to the plaintiff that by virtue of his age, he must consider retirement.
• That at a meeting on January 7, 2014, Arsenault expressed or implied to the plaintiff, that by virtue of his age, he should retire.
[10] Paragraph 30 merely alleges that the conduct constitutes a violation of the Ontario Human Rights Code.
[11] On this motion, in support of the allegations, the plaintiff produced his own notes of that time period, kept in a journal format, made the same day or shortly after the events. He wrote:
I felt that they were hoping I would offer to retire, last year during the evaluations I requested to be included in the retirement program as others were, I was told I already had a pension and this was for people that did not.
[12] This is the single and only reference to any retirement comments in a lengthy document describing various events and plans.
[13] The defendants specifically deny that they spoke the words as alleged in paragraphs 28 and 29. The defendants plead that there were discussions around that time about a common friend who had died recently and linked that discussion to retirement.
[14] On his examination, the plaintiff confirmed that the note reflected his interpretation at the time. The plaintiff also acknowledged in examinations that at the time of his termination he was aware that the employer had performance-based concerns with the plaintiff that the business was operating in a loss position.
[15] The plaintiff does not allege any employment relationship with Arsenault or Houle although the plaintiff has asserted that the claim is against the individual defendants not against the corporation.
[16] Section 46.1(1) of the Code creates liability for a ‘party’ who infringes the Code. A proper party under the Code is the employer.
[17] I am satisfied that there was no employment relationship between the plaintiff and the personal defendants.
[18] The only factual basis offered in support of the plaintiff’s allegations do not in fact provide support for the claim that the defendants expressed that the plaintiff should or must retire. This was a late career job opportunity in a small new company. The plaintiff was hired to bring value to the company. The company was in a chronic loss situation and the defendants had on more than one occasion expressed their performance concerns with the plaintiff. The plaintiff’s factual foundation does not support a claim of age discrimination.
[19] I am satisfied that the defendants Arsenault and Houle are entitled to summary judgment under Rule 20. I find that: a) There is no genuine issue for trial; b) I am able to decide the issues with the material that was filed on the motion; and c) it would not be otherwise unjust to decide the issues on the motion.
[20] The issue of costs on this claim is to be dealt with at the end conclusion of the case.
The Plaintiff’s Motion for Summary Judgment
[21] The defendants do not allege that there was cause for the termination. In their Statement of Defence, the defendants contend that they provided six weeks’ pay in lieu of notice at the time of termination.
[22] There is no allegation that the plaintiff did not make reasonable efforts to mitigate. In fact, he secured new employment in less than five months post-termination.
[23] The only issue remaining is the quantum of notice required in the circumstances. There remains some argument necessary to be able to come to a determination on quantum. Counsel may make arrangements with the trial coordinator to set a date for argument on the sole issue of notice. If counsel consider a need to file any further affidavit material and cannot agree on such, they may seek an appointment with me to deal with this issue. Otherwise, the question of quantum is to be argued on the basis of the materials already filed. Counsel to be prepared to argue costs at that attendance.
[24] Counsel are strongly encouraged to consider a pre-trial on this issue.
The Honorable Madam Justice Patricia C. Hennessy
Released: November 17, 2016
CITATION: Doherty v. 1763952 Ontario Inc. (K4 Integration Inc.), 2016 ONSC 7159
COURT FILE NO.: C14100-15
DATE: 20161117
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Timothy Doherty
Plaintiff
– and –
1763952 Ontario Inc. o/a K4 Integration Inc. and Gilles Arseneault and Marcel Houle
Defendants
ruling on motion for summary judgment
Hennessy J.
Released: November 17, 2016