Muntean v. Enablence Canada Inc., 2016 ONSC 923
OTTAWA COURT FILE NO.: 15-63237
DATE: 2016-04-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT MUNTEAN
Plaintiff
– and –
ENABLENCE CANADA INC.
Defendant
D. Bruce Sevigny, for the Plaintiff
Stefan Kimpton, for the Defendant
HEARD: February 4, 2016
This is an amendment to the decision released on February 5, 2016. The amendment occurs at para. 5. The December 15 and December 16 dates are changed to the year 2014.
T.D.RAY, J
[1] The plaintiff initially framed this as a motion for partial summary judgement in this employment, wrongful dismissal claim for some of the damages claimed in his Statement of Claim, namely damages for wrongful dismissal, but not for the claimed damages for unpaid vacation pay, or the $50,000 punitive damages claim. This is a rule 76 simplified rules action. At the beginning of argument, the plaintiff advised that the claim for vacation pay was not going to be pursued as it had been previously paid in July, 2015. At the conclusion of argument he advised that his client abandoned the punitive damages claim. While the summary judgement motion is framed as partial judgement, it is no longer for partial summary judgement.
[2] The issues are as follows:
a. Is there a genuine issue requiring a trial?
b. Did the purported lay-off notice by the defendant on November 25, 2014 amount to constructive dismissal of the plaintiff at the time?
c. If not, did the plaintiff acquiesce with the lay-off so as treat the lay-off as subsisting, and therefore maintaining the employment relationship?
d. Did the defendant’s call to the plaintiff on the morning of December 16, 2014 amount to a call to return to work and therefore a resumption of work?
e. Did the plaintiff’s lawyer’s letter received by the defendant the afternoon of December 16, 2014 have the effect of turning the lay-off into constructive dismissal entitling the plaintiff to damages?
f. Are the damages for wrongful dismissal to be assessed with reference to the notice period of 6 months by the defendant stipulated in the employment contract?
[3] The plaintiff worked for the defendant as a full-time engineer with a 3 year written contract at a salary of $68,000. The contract provided that the plaintiff was to be given 6 months’ notice if the defendant wished to terminate his employment; and the defendant was to give 3 months’ notice if he wished to resign. There was no provision requiring mitigation, and no provision for a temporary lay-off. The plaintiff had worked for the defendant for 6.5 years.
[4] On November 25, 2014, the defendant advised the plaintiff by letter that he was “being temporarily laid off” from his position because of financial issues affecting the company. The notice asserted that his benefits would continue, and that the defendant “may be in a position to recall you within the next 35 week period.”
[5] The plaintiff received a voicemail message from the defendant on December 15, 2014, asking that he call the defendant. He received a second voicemail at 9:20am on December 16, 2014 from the defendant asking him to return to work. He did not return either call. Instead, he had his lawyer send a letter by email to the defendant dated December 16, 2014 (received at 2:20pm), in which he advised the defendant that he was treating the ‘temporary lay-off’ as ‘constructive dismissal.’ On December 16, 2014, after receiving the letter, the defendant left a second voicemail message saying that they wanted him back to work full time. A letter was sent to the plaintiff December 18, 2014 formally requesting he return to work.
[6] The terms of the lay-off notice of November 25, 2014 included that wages to date would be paid immediately and that the benefit package would continue to be available. He was told he could look for other work, and that the Record of Employment would be available so he could apply for employment insurance benefits. The unpaid wages were not paid for several days. The plaintiff continued to make claims against the benefit package including dental expenses in May, 2015.
[7] The defendant had been in touch with his future employer in June, 2014, but the 3 month notice he was required to give the defendant was apparently problematic at the time. He continued his discussions with this employer after November 25, 2014, and joined the employer February 4, 2015 at a salary of $90,000.
[8] The defendant’s position is that shortly after the lay-off notice, it spoke to the plaintiff about some work in the company, but he declined saying that he was waiting for his first employment insurance payment. It also says, and the evidence shows, that it kept the plaintiff informed about its search for financing through emails, and its ability to pay him his outstanding wages. On December 15, 2014, it secured financing of $2.7 million, and began notifying all lay-off employees by email, including the plaintiff. The plaintiff denies that he had accepted the temporary lay-off, denies that he refused the call back because he was waiting for the new job to come through.
[9] The facts in this case are not disputed. It is the inference from the facts, and the applicable legal principles that are in dispute. I am satisfied that there is no issue requiring a trial, and that in light of the plaintiff’s position with respect to the balance of its claim against the defendant, I need not be distracted by the need for this evidence to be considered over again at a trial to determine those claims.
[10] I am satisfied that the mere giving of the lay-off notice on November 25, 2014 did not amount, at the time, to constructive dismissal. While it certainly had the potential to be treated by the plaintiff as constructive dismissal, since it flew in the face of the terms of the written employment agreement which did not contemplate a temporary lay-off, the terms of the lay-off anticipated the continuance of the employment relationship. For example, the option offered by the defendant to the plaintiff to continue the benefit package during the lay-off period, and the expressed hope that the lay-off would not last beyond 35 weeks supports that conclusion. The plaintiff was told that if he found other work to let them know, reinforced the message. While it was never argued, it is implicit that the defendant had abandoned the notice period contained in the written agreement required of the plaintiff if he resigned.
[11] The plaintiff was entitled to and did decline to treat the lay-off notice as constructive dismissal – at least up until December 16, 2014. That makes practical sense. The law should not impose a result on the plaintiff that he did not cause nor want. The plaintiff needed time to consider what he wanted to do.[^1] He is entitled to consider how he wants to treat the lay-off, and further decide if he really wants to accept the lay-off as the end of his employment relationship. He was aware that the defendant was facing financial issues. The evidence is that the plaintiff made enquiries about other employment, particularly with his future employer. That too is to be expected. He declined to return to the defendant for some part time work – as opposed to call-back – since he did not want to risk his first employment insurance cheque. That is quite understandable. I find that he acquiesced with the lay-off, and was still accepting of the lay-off when he was called back to work by the voicemail message on the morning of December 16, 2014. He would have received an email from the defendant a day or two earlier announcing new and significant financing so the defendant would be able to resume its activities. He would have known that he was likely to be recalled, and would not have been surprised by the voicemail on December 16, 2014. The evidence is that the plaintiff had sought legal advice before December 16, 2014, but had not instructed his legal representative that he wished to treat the lay-off as constructive dismissal and end the period of acquiescence.
[12] It was open to the plaintiff to decline to accept the call-back, which he did by virtue of his lawyer’s letter of December 16, 2014. However, that did not end the period of acquiescence to the lay-off. He continued to make claims against the defendant’s benefit package as if he were an employee, even after he had accepted other employment.
[13] I find that at no time did the lay-off become a constructive dismissal. The plaintiff argues that as of his lawyer’s letter of December 16, 2014, he was constructively dismissed, and entitled to damages equal to the 6 month notice period in the written contract on the authority of Bowes v. Goss Power Products Ltd., 2012 ONCA 425, which held that a notice period in a written employment contract constitutes the measure of the damages for wrongful dismissal.
[14] It is clear on the evidence that the plaintiff did not decide what he wanted to do until after he was aware the defendant wanted him to return to work. By that time, it was too late for him to declare that he had been constructively dismissed. In addition, his continued application for a receipt of benefits from the defendant’s employment is troubling and is inconsistent with his declaration of constructive dismissal.
[15] I find that at the time the defendant offered to bring the plaintiff back to work, the plaintiff had acquiesced with the lay-off notice, and the defendant had, by virtue of the lay-off notice, abandoned its right to require 3 months’ notice from the plaintiff. In the unique circumstances of this case, I find that both parties had implicitly or explicitly accepted terms other than those contained in the written employment agreement, and the plaintiff is entitled to damages for wrongful dismissal on a common law basis.
[16] I find the plaintiff’s damages to be the equivalent of the salary he would have been entitled to for the period November 25, 2014 to February 4, 2015. He was a 6.5 year employee working as an engineer. If the parties require an accounting in order to determine the amount of the damages noted above, they may make further submissions.
[17] The answers to the issues listed in paragraph 2 are :
a. No
b. No
c. Yes
d. Yes
e. No
f. No
[18] I note the massive quantities of briefs, transcripts, and authorities that were before me, and remind counsel this was a simplified rules case which permitted the issues to be resolved without undue delay and without undue cost. The principle of proportionality comes to mind, since the plaintiff was seeking damages of $37,000, having abandoned his $50,000 claim for punitive damages. I note parenthetically that there was absolutely no evidence to support a punitive damages claim. The parties filed costs outlines as required in the rules. The plaintiff quantifies his costs at between $20,702.31 for partial indemnity, and $35,550.51 for substantial indemnity. The defendant quantifies his costs at between $14,457.61 and $21,069.97.
[19] The plaintiff improperly referenced an offer to settle in his costs outline. Offers should only be disclosed to the court after a decision is rendered, and after the parties are asked for their costs submissions.
[20] If the parties find they cannot agree on costs, they may make written submissions of two pages or less within 14 days, and a further 5 days for reply.
Released: April 7, 2016
CITATION: Muntean v. Enablence Canada Inc., 2016 ONSC 923
OTTAWA COURT FILE NO.: 15-63237
DATE: 2016-04-07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT MUNTEAN
Plaintiff
– and –
ENABLENCE CANADA INC.
Defendant
REASONS FOR JUDGeMENT
Honourable Justice Timothy Ray
Released: April 7, 2016
[^1]: Schellenberg v Marzden Artistic Aluminum Ltd, [1986] BCJ No 1190 (BCCA) @paragraph 26; also Martellacci v. CFC/INX Ltd. [1997] O.J. No. 6383, 1997 12327, 28 C.C.E.L. (2d) 75 @ paragraph 34.(Gen Div).
[^[2]]: 2012 ONCA 425