Benjamin v. Cascades Canada ULC, 2017 ONSC 2583
Court File No.: CV-16-556038
Date: 2017-04-27
Superior Court of Justice - Ontario
Re: Patrick Benjamin, Plaintiff
And:
Cascades Canada ULC c.o.b. as Cascades Tissue Group Toronto, Defendant
Before: Justice Glustein
Counsel: Bruce Baron, for the Plaintiff
Christopher M. Little, for the Defendant
Heard: April 10, 2017
Reasons for Decision
Nature of motion and positions of the parties
[1] The plaintiff, Patrick Benjamin (“Benjamin”), brings a summary judgment motion against his former employer, the defendant Cascades Canada ULC c.o.b. as Cascades Tissue Group Toronto (“Cascades”). Benjamin seeks 24 months’ common law notice, less 34 weeks’ pay he received from Cascades under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”) following his termination on May 12, 2016.
[2] Cascades seeks summary judgment dismissing Benjamin’s action.
[3] Benjamin was an unskilled general labourer with 28 years’ experience at Cascades (and a predecessor company). Cascades terminated Benjamin without cause, along with 41 other employees, due to the elimination of all of the production functions at Cascades’ Scarborough plant.
[4] The primary issue on this motion is whether Cascades has met its onus to establish that Benjamin failed to reasonably mitigate his losses upon his termination. Benjamin submits that Cascades has failed to meet its onus.
[5] Benjamin submits that his decision to retrain as a skilled worker by attending a full-time welding program for six months from August 2016 to February 2017 constitutes reasonable mitigation of damages. Benjamin relies on his evidence that “I needed to improve my skills after 28 years”, and “brush up from unskilled labour to skilled labour”, since “I was at the bottom of the food chain” and wanted “to restore myself to my former security and income”.
[6] Consequently, Benjamin seeks the full amount of his common law notice, less deductions for amounts paid by Cascades under the ESA upon Benjamin’s termination.
[7] Cascades submits that Benjamin’s decision to retrain was not reasonable, since Benjamin chose to pursue a new career and not consider comparable employment when there were three positions available at Cascades immediately after his termination which were similar to Benjamin’s work and remuneration.
[8] Those positions were (i) in the Cascades “labour pool” at its Whitby location, (ii) as a “production supervisor” at its Whitby location, and (iii) as a “spare” at another Cascades location in Scarborough. Cascades submits that had he applied, Benjamin “could have” been hired for any of those positions, and was “likely” to be hired for either the “labour pool” or “spare” positions.
[9] Cascades paid Benjamin the equivalent of eight months’ salary upon his dismissal, comprised of termination and severance pay under the ESA. Cascades submits that Benjamin failed to reasonably mitigate his damages by June 2016 (when he chose to start a new career as a welder and not to seek any comparable work), and in any event, by no later than July 2016 (when the first of the available comparable positions was filled).
[10] Consequently, Cascades submits that Benjamin’s entitlement to wrongful dismissal damages ended as of June or July 2016, well before the eight months of salary paid upon termination, and, as such, Benjamin is not entitled to recoverable damages.
Overview
[11] For the reasons that follow, I find that Benjamin failed to reasonably mitigate his damages. By early June 2016, less than a month after his termination, Benjamin chose not to apply for positions comparable in nature and remuneration with his prior employment as an unskilled labourer. The uncontested evidence is that those positions were available at Cascades, and he could have obtained (and was likely to obtain) one of those positions given his experience. Instead, he chose to start a new career as a welder to become a skilled worker, so that he could control his own hours and not be terminated again.
[12] Cascades, as the employer, met its onus under the leading case of Michaels v Red Deer College, 1975 CanLII 15 (SCC), 1975 CarswellAlta 57 (SCC) (“Michaels”) to establish Benjamin’s failure to reasonably mitigate his damages. The evidence was that (i) Benjamin did not take any steps (or at least any reasonable steps) to search for comparable employment and (ii) had he done so, he could have obtained comparable employment.
[13] Cascades provided Benjamin with at least three directly comparable positions which Benjamin chose to ignore. Cascades ought not to be responsible in law for a decision by a terminated employee to change his career when he chose not to pursue comparable work opportunities provided by the employer and could have obtained a comparable position had he applied. The case law addressing “retraining” by dismissed employees is consistent with this principle.
[14] I find that by June 2016 (or at the latest by July 2016), Benjamin was no longer entitled to damages arising out of his dismissal. Since Benjamin received the equivalent of eight months of salary upon his termination, he is not entitled to any recoverable damages.
[15] Consequently, I do not address the appropriate common law notice period.
Facts
[16] I agree with both parties that there is no genuine issue requiring trial. The facts are generally not contentious, and I make any necessary findings of fact with “confidence that [I] can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” (Hryniak v. Mauldin, 2014 SCC 7, at para. 50).
[17] I review the facts relevant to (a) Benjamin’s employment with Cascades, (b) his termination, (c) Cascades’ severance package, (d) Cascades’ assistance to Benjamin to find comparable work, and (e) evidence relevant to mitigation.
a) Benjamin’s employment with Cascades
[18] Benjamin worked at Cascades’ Scarborough facility for over 28 years (including work with a predecessor company acquired by Cascades).
[19] Benjamin was a “line operator”. He was an unskilled labourer responsible for the operation of a “Re-winder” on a production line. His job consisted of general labourers’ duties and included operating machinery such as a roll clamp, box clamp, forklift, scissor lift, and crane. He acted as a “spokesman” to address general labourers’ issues with his supervisor.
[20] Benjamin had no management or supervisory responsibilities. He had no responsibility to hire or fire employees. He did not schedule hours of work, including overtime, and did not approve time off.
[21] Benjamin earned $27.55 per hour, with an average weekly salary of $1,239.75. His annual base salary at the date of his termination was $64,467.
[22] Benjamin also earned overtime pay which was not guaranteed. In 2015, Benjamin earned $11,010.89 in overtime pay, based on 268.5 hours. There was an unusually high amount of overtime available in early 2015 in order to accommodate the retraining of a number of employees to replace workers who had been laid off.
[23] In light of Cascades’ financial circumstances, overtime employment opportunities declined in 2016 in the period leading up to Benjamin’s termination. In 2016, Benjamin earned $1,518.68 in overtime pay for 36.75 hours during his 20 weeks of employment. At that rate, Benjamin would have earned approximately $3,948.50 in overtime pay for 2016.
[24] Benjamin also had an employment benefits plan for health and dental benefits, short and long-term disability coverage, and life insurance. Cascades’ annual cost for these benefits for Benjamin in 2016 was $2,628.59, based on $219.05 monthly.
[25] Cascades also contributed to a group RRSP program. Cascades’ annual cost for this benefit for Benjamin in 2015 was $5,282.16, based on an average of $440.18 per month.
[26] Cascades also offered a profit-sharing plan, but no payments were made to Benjamin or any other employee at the Scarborough facility because the facility was not profitable.
[27] Under the above calculation, Cascades submits that Benjamin’s remuneration would be $76,326.25, comprised of his weekly salary, approximate overtime hours for 2016, and employer paid group and pension benefits.
[28] Benjamin submits that his remuneration was $75,610.15, based on his 2015 notice of assessment, plus health, dental, and insurance benefits (which Benjamin assesses at $400 per month) and pension benefits (which he assesses at “between $5,000 and $6,000 per annum”).[^1]
b) Benjamin’s employment is terminated
[29] In the spring of 2016, Cascades determined that it was no longer profitable to manufacture products at the Scarborough facility. Cascades decided to eliminate production functions, but maintained its distribution facility.
[30] Consequently, in May 2016, Cascades terminated 42 employees on a without cause basis.
[31] Cascades advised Benjamin on May 12, 2016 that his employment was terminated effective immediately because of the restructuring.
c) The severance package offered by Cascades
[32] Cascades offered Benjamin a severance package of eight weeks of pay ($9,918) and 42.28 weeks of severance pay ($52,420.76), for a total offer of 50.28 weeks (11.7 months) salary, being $62,338.76, less applicable deductions.
[33] Benjamin did not accept the severance package.
[34] Consequently, Cascades paid Benjamin 8 weeks of pay in lieu of notice of termination ($9,918), less applicable deductions, in accordance with the ESA. Cascades also paid Benjamin an extra 2.19 weeks of severance pay above his statutory entitlement. Benjamin received 28.19 weeks of severance pay ($34,947.18), less applicable deductions. In total, Cascades paid Benjamin $44,865.18 less deductions, an amount equivalent to approximately 8 months of salary.
[35] Cascades also continued Benjamin’s benefit coverage and pension plan contributions for eight weeks following termination as required by the ESA.
d) Post-employment job search assistance available and provided to Benjamin
[36] On May 16, 2016, Cascades advised the affected employees that it would provide them with outplacement counselling sessions, which consisted of two-day workshops broken into four half-day sessions. Participants in the sessions were given guidance on writing resumés and interview techniques, as well as written information about the job search process.
[37] Cascades also offered its affected employees “one-on-one” coaching.
[38] As of May 18, 2016, Cascades provided affected employees with weekly email newsletters with (i) tips and guidance on searching for new employment and (ii) job opportunities at Cascades’ other locations and job postings at other companies for which employees might be qualified.
[39] Benjamin agreed on cross-examination that Cascades was researching the job market on a weekly basis and providing affected employees with leads for open jobs for which he was qualified and could have applied if he wished to secure new employment.
e) Evidence relevant to mitigation
[40] The two key issues to be considered under the Michaels test: are (i) whether the terminated employee (i) “exercise[d] proper industry” to consider comparable employment and (ii) if the terminated employee had done so, whether he or she “could have procured” the employment.
[41] Consequently, I review the evidence of both (i) the availability of comparable employment and (ii) Benjamin’s conduct after termination.
i) The comparable jobs available for Benjamin from the May 18, 2016 Newsletter
[42] In the May 18, 2016 newsletter that Cascades sent to Benjamin, it listed numerous job opportunities, including three specific postings with Cascades at other locations in the Greater Toronto Area.[^2]
[43] Benjamin agreed on cross-examination that he had no “geographic limits” on where he was prepared to work.
[44] Mr. Kinnear Carrick (“Carrick”), Human Resources Senior Consultant with Cascades, gave evidence about each of the Cascades postings. His evidence was provided by answers to undertakings from cross-examination, and Benjamin did not cross-examine Carrick on the answers to undertakings.
[45] There is no dispute that these postings were comparable to Benjamin’s employment as a line operator. The postings were for unskilled general labour positions with Cascades with a comparable remuneration including comparable benefits.
[46] There is no dispute that Benjamin was qualified for these positions.
[47] Cascades acknowledged on discovery that it had no evidence that Benjamin “would have” obtained the jobs if he had applied. However, as I discuss below, Carrick’s evidence was that given Benjamin’s experience, he (i) “likely would have obtained” either the “labour pool” or “spare” position “had he applied for it”, and (ii) “likely would have been a viable candidate” for the “production supervisor” position “had he applied for it”.
[48] Also, there was no evidence before the court that Benjamin could not have returned to Cascades because (i) the salary was not the same, (ii) working conditions were substantially different, (iii) the work offered was demeaning, (iv) personal relationships were acrimonious, or any of the other factors set out in Evans v. Teamsters, Local 31, 2008 SCC 20, [2008] 1 SCR 661, at para. 28.[^3]
1. The “labour pool” position
[49] The first position was in the “labour pool” at Cascades’ Whitby location. Remuneration for this position was at $26.88 per hour based on 45 hours per week, with full health, dental, and pension benefits, plus participation in a profit sharing plan that paid approximately $2,000 in 2016. The position also permitted relief shifts at a higher rate of pay at $28.87 per hour.
[50] The two employees in that position in 2016 earned $77,219 and $65,860.
[51] Carrick’s evidence is that the job “involves a considerable opportunity for overtime, as well as frequent opportunities to relieve workers in higher paid positions”.
[52] Carrick’s evidence is that:
Having had an opportunity to review the key terms of, and the qualifications for, this position, I believe that Mr. Benjamin is fully qualified for this job and likely would have obtained this position had he applied for it.
[53] The “labour pool” position was filled on July 18, 2016.
2. The “production supervisor” position
[54] The second position was as a “production supervisor” at Cascades’ Whitby location. The annual salary range was $75,000 to $85,000 plus participation in a profit sharing plan that paid approximately $2,000 in 2016.
[55] Carrick’s evidence is that:
Having had an opportunity to review the key terms of, and the qualifications for, this position, I believe that Mr. Benjamin is qualified for this job and likely would have been a viable candidate for this position had he applied for it.
[56] The “Production Supervisor” position was filled on September 12, 2016.
3. The “spare” position
[57] The third position was as a “spare” at another Cascades’ Scarborough location. Despite the confusion from the job title, this was a full-time position as a general labourer.
[58] Remuneration was based on $26.36 per hour for 40 to 45 hours per week, with full health, dental, and pension benefits, plus participation in a profit sharing plan that paid approximately $1,000 in 2016. The position also permitted relief shifts at a higher rate of pay at $28.31 per hour.
[59] The two other employees at the Scarborough location in the same position earned $75,376 and $72,815 in 2016.
[60] Carrick’s evidence is that the job “involves a considerable opportunity for overtime, as well as frequent opportunities to relieve workers in higher paid positions”.
[61] Carrick’s evidence is that:
Having had an opportunity to review the key terms of, and the qualifications for, this position, I believe that Mr. Benjamin is fully qualified for this job and likely would have obtained this position had he applied for it.
[62] The “spare” position had not been filled as of the hearing.
ii) Benjamin’s conduct after termination[^4]
[63] In his answers to undertakings, Benjamin stated that:
I wish to address my need to update my skills from general labour to skilled Labour [sic] and why I did not apply to the jobs Cascades forwarded to me.
[64] Over the first few weeks after his May 12, 2016 termination, Benjamin did not apply for any open job positions, including those emailed directly to him by Cascades, because “it took me a few weeks (the first month or so) to get over the shock anxiety [sic] and depression of being fired from my longstanding career. I was not mentally ready”. Benjamin added that “I was too depressed and unsure of what to do to apply for any jobs. I needed to spend some time to inform myself of how to obtain a secure job at a level of income comparable to what I was earning before”.
[65] By the end of May 2016, Benjamin was “mentally ready” to think about his future employment options.
[66] Benjamin attended and completed Cascades’ outplacement counselling sessions on May 24, May 26, May 30, and June 3, 2016 (over the four half-day sessions).
[67] By early June 2016, Benjamin’s evidence was that “I began to take a look at the jobs available in the market. I looked at the paper, the internet and the jobs Cascades had forwarded to me”. His evidence was that he concluded from his search that:
None of the jobs I was qualified for (unskilled labour) were paying anywhere close to the $80,000+ I was making at Cascades. So I did not apply.
[68] The uncontested facts about the remuneration of the available Cascades’ position, as set out at paragraphs 49, 54, and 58 above do not support Benjamin’s alleged concerns about the remuneration of the “jobs Cascades had forwarded” to Benjamin.
[69] Carrick’s uncontested evidence is that the three Cascades’ postings were comparable to the remuneration Benjamin earned as a line operator, and had similar benefits, as well as profit sharing which, unlike at Benjamin’s plant location, did pay out to the employees as those plants were profitable. Benjamin’s counsel at the hearing reasonably acknowledged that the remuneration (and positions) were comparable to Benjamin’s “line operator” position.
[70] Consequently, I find that Benjamin either did not reasonably review the “jobs Cascades had forwarded to me” or did not review them at all. Either finding would be fully consistent with his evidence that by this same time period at the beginning of June 2016, he had already decided to switch careers and attend the welding training program to retrain as a skilled labourer.
[71] Benjamin’s evidence was that by early June 2016, he concluded that it was necessary “to brush up from unskilled to skilled labour” in order to “maximize the chance of getting myself a job at my former income and security”. Benjamin concluded that “being an unskilled labourer, I was at the bottom of the food chain. I learned that I needed to improve my skills after 28 years”.
[72] Benjamin believed that he needed to retrain since (i) he was an unskilled labourer in “the manufacturing industry [which] has severely declined in the past 28 years” and (ii) “Ontario is barely recovering from a longstanding economic recession”.
[73] Consequently, Benjamin decided at that time to enroll in the 6-month “Welder Fitter” program at The Institute of Technical Trades. Benjamin had learned that the institute offered short training programs which were eligible for government funding. He successfully obtained a “Second Career” grant, so that the government paid $9,000 for his tuition and he paid $2,000 for equipment and transportation.
[74] In cross-examination, Benjamin agreed that he decided to obtain his welding license because he wanted to acquire a skilled trade so that (i) he had some control over his hours and (ii) he could not be terminated again.
[75] The Welder Fitter program ran from August 22, 2016 to February 3, 2017. Benjamin expected to receive his certification card in early March 2017.
[76] In his cross-examination, Benjamin agreed that the type of work he would perform after receipt of his welding certificate was unrelated to his previous employment performing general labour at Cascades.
[77] Having decided to enroll in the Welder Fitter program, Benjamin made no further efforts from the beginning of June 2016 to apply for employment. Benjamin’s evidence was consistent that the reason he did not apply for any job was because he had decided to retrain as a welder. His evidence (through his counsel at cross-examination) was:
Even if our client was qualified for any of these positions, he didn’t apply because he was in welder school and wanted to be a welder and upgrade his school and have a specialty, a career, a training, a skill, a trade that he could fall back on so he couldn’t be terminated again. So, even if there are jobs here that he was qualified for and could have applied for that were not welder positions, he did not apply for that reason.
[78] Benjamin did not attend the one-on-one coaching offered by Cascades. His affidavit evidence was that:
I did not attend the one on one coaching because I had begun registering for full-time school and did not feel the coaching sessions would be beneficial to me at that time.
[79] Benjamin’s affidavit evidence was that while he received the job search listings which included the three positions with Cascades:
I did not apply to the jobs because I am enrolled in the full-time Welder Fitter program at The Institute of Technological Trades until February 2017.
[80] As stated in his factum, Benjamin took the position that “none of these jobs were applicable to the plaintiff given the fact that he was training to be a welder”.
[81] Similarly, on cross-examination, Benjamin agreed that he “didn’t apply to any of the jobs that were provided – job leads that were provided in the newsletters because [he] had decided to pursue the welding career”.
[82] Benjamin continued to receive Cascades’ newsletters with job opportunities until he contacted Cascades on November 11, 2016 and asked to be removed from the mailing list.
[83] Benjamin acknowledged on cross-examination that he could have applied for any of the job opportunities that were set out in the Cascades’ newsletters.
[84] Benjamin did not apply for any position from the date of his termination on May 12, 2016 until late February 2017, after being advised that he had passed his welding certification and would receive it in the first or second week of March 2017. At that point, he began applying for welding jobs.
Applicable law
[85] Both parties provided case law as to the duration of reasonable notice for employees comparable to Benjamin’s age, years of service, and employment responsibilities.
[86] For the reasons I discuss below, I find that Benjamin failed to reasonably mitigate his damages as of June 2016,[^5] and, as such, is not entitled to recoverable damages since Cascades paid him the equivalent of eight months’ salary upon his termination. Consequently, I do not address the issue of the appropriate notice period.
[87] I address below (a) the applicable principles of reasonable mitigation of damages arising from wrongful dismissal, (b) the effect of retraining on reasonable mitigation, and (c) the ability to recover damages if the employer establishes that the employee failed to reasonably mitigate damages after termination.
a) Reasonable mitigation of damages arising from wrongful dismissal
[88] The leading case on the duty to mitigate in wrongful dismissal cases is Michaels. In Michaels, Laskin C.J. held that:
(i) an employee is required to mitigate damages arising from wrongful dismissal;
(ii) the onus is on the employer to establish a failure to mitigate; and
(iii) the onus requires the employer to establish that (a) the employee did not take reasonable steps to seek comparable employment, and (b) if the employee had done so, the employee could have procured such comparable employment.
[89] I address each of these principles below.
i) An employee is required to mitigate damages arising from wrongful dismissal
[90] In Michaels, Laskin C.J. held that as in any claim for breach of contract, a plaintiff employee is required to mitigate damages arising from wrongful dismissal.
[91] Laskin C.J. adopted the following passage from Viscount Haldane L.C. in Br. Westinghouse Electric & Manufacturing Co. v. Underground Electric Rys. Co. of London Ltd., [1912] A.C. 673 at 689 (Michaels, at para. 5):
The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps. In the words of James L.J. in Dunkirk Colliery Co. v. Lever, ‘The person who has broken the contract is not to be exposed to additional cost by reason of the plaintiffs not doing what they ought to have done as reasonable men, and the plaintiffs not being under any obligation to do anything otherwise that in the ordinary course of business.’ [Emphasis added]
[92] Laskin C.J. then applied the general principle requiring mitigation of contractual damages to the context of wrongful dismissal. He relied on the following passage from Williston on Contracts (1968), 3rd ed., vol. 11 at p. 30 (Michaels, at para. 11):
The rule of avoidable consequences here finds frequent application. The consequence of this injury is the failure of the employee to receive the pay which he was promised but, on the other hand, his time is left at his own disposal. If the employee unavoidably remains idle, the loss of his pay is actually suffered without deduction. If, however, the employee can obtain other employment, he can avoid part at least of these damages. Therefore, in an action by the employee against the employer for a wrongful discharge, a deduction of the net amount of what the employee earned, or what he might reasonably have earned in other employment of like nature, from what he would have received had there been no breach, furnishes the ordinary measure of damages …[Emphasis added]
[93] Consequently, it is settled law that the court determining damages in a wrongful dismissal case can consider whether an employee failed to reasonably mitigate losses arising from the dismissal.
ii) The onus is on the employer to establish a failure to mitigate
[94] Laskin C.J. then reviewed the onus to establish reasonable mitigation of damages in wrongful dismissal cases. Laskin C.J. held that the onus is on the employer to establish that the employee failed to reasonably mitigate damages arising from the dismissal. He held (Michaels, at para. 11):
In the ordinary course of litigation respecting wrongful dismissal, a plaintiff, in offering proof of damages, would lead evidence respecting the loss he claims to have suffered by reason of the dismissal. He may have obtained other employment at a lesser or greater remuneration than before and this fact would have a bearing on his damages. He may not have obtained other employment, and the question whether he has stood idly or unreasonably by, or has tried without success to obtain other employment would be part of the case on damages. If it is the defendant's position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial judge's assessment of the plaintiff's evidence on avoidable consequences.[Emphasis added]
[95] Laskin C.J. commented that that the burden on any defendant to establish that the plaintiff failed to reasonably mitigate damages is not “light”, including in the case of wrongful dismissal. Laskin C.J. adopted the following passage from Cheshire and Fifoot’s Law of Contract (1972), 8th ed. (Michaels, at para. 12):
But the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame.
iii) The requirements the employer must establish to satisfy the onus
[96] Laskin C.J. then considered the requirements on an employer to meet the onus. He held that the employer needs to establish that the employee either found employment or (Michaels, at para. 11):
(i) the employee did not take reasonable steps to seek comparable employment “by the exercise of proper industry in the search”, and
(ii) if the employee had done so, the employee “could have procured” such comparable employment.
Laskin C.J. adopted the following passage from Williston on Contracts, supra, at p. 312 (Michaels, at para. 11):
It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract. [Emphasis added]
[97] Laskin C.J. held that if the employer establishes the above elements, the “ordinary measure of damages” is determined by deducting from the notice period the amount that “the employee earned, or what he might reasonably have earned in other employment of like nature, from what he would have received had there been no breach” (Michaels, at para. 11).
[98] The court in Di Tomaso v. Crown Metal Packaging Canada LP, 2010 ONSC 5761 (“Di Tomaso”), at paras. 36 and 41 (citing Somir v. Canac Kitchens, [2006] OJ 5052 (SCJ), at para. 58), followed the Michaels test. Both counsel in their factums relied upon Michaels (and Benjamin also relied on Di Tomaso) when reviewing the requirements to meet the employer’s onus.
[99] At the hearing, Benjamin’s counsel provided the court with the decision in Fisher v. Hirtz, 2016 ONSC 4768 (“Fisher”), in which Perell J. stated that the onus on the employer was to establish that had the employee taken reasonable steps to mitigate, the employee “would likely have found a comparable position” (Fisher, at para. 61).
[100] Benjamin’s counsel submitted that the “would likely” onus as set out in Fisher was a higher onus than the “could have procured other employment of an approximately similar kind reasonably adapted to his abilities” onus as set out in Michaels, and asked the court to adopt the higher onus.
[101] In Fisher, Perell J. stated (Fisher, at para. 61):
[T]he onus is on the employer to prove that the employee would likely have found a comparable position reasonably adapted to his or her abilities and that the employee failed to take reasonable steps to find that comparable position.
[102] Perell J. relied on the decision of D. Brown J. (as he then was) in Yiu v. Canac Kitchens Ltd., [2009] OJ 871 (SCJ) (“Yiu”), in which he held (Yiu, at para. 16):
Accordingly, an employer must establish that the employee failed to take reasonable steps and that had his job search been active, he would have been expected to have secured not just a position, but a comparable position reasonably adapted to his abilities.
[103] Consequently, Benjamin submitted that the onus is on the employer to establish that if the employee had pursued those opportunities, the employee “would likely” have obtained the comparable position.
[104] On the facts of this case, the legal issue is irrelevant as I find that Benjamin not only “could have” obtained the comparable Cascades’ “labour pool” and “spare” positions, but was also “likely” to do so. Consequently, Cascades discharged its onus under either test.
[105] I will nevertheless address Benjamin’s submission on the applicable law.
[106] I agree that there are differences between establishing a “could have” onus as compared to a “would likely have” onus. For the reasons that follow, however, I find that the Michaels test sets out a “could have” onus and it is the proper approach to follow.[^6]
[107] The court in Cimpan v. Kolumbia Inn Daycare Society, 2006 BCSC 1828 (“Cimpan”) addressed the submission of the employee in a wrongful dismissal case that that an employer seeking to discharge its onus to establish a failure to reasonably mitigate ought to be required to prove that the dismissed employee “would have” been able to secure a particular job with another employer. Truscott J. rejected that submission. He held (Cimpan, at para. 108):
While the onus is on the defendant to prove the plaintiff has not mitigated, it would be impossible for any employer to prove that the employee would have been able to secure a particular job.
[108] Counsel for Benjamin agreed that an onus requiring employers to establish that the employee “would have” obtained a comparable position would be logically “impossible” and is not appropriate. I agree for the reasons of Truscott J. in Cimpan.
[109] However, to increase the onus on an employer to show that the employee “would likely” have obtained an available comparable position, as submitted by Benjamin, raises similar concerns as in Cimpan. Under such a proposed test, employers would somehow have to establish the “likelihood” of a dismissed employee obtaining a comparable job, potentially requiring the employer to lead evidence as to the number of candidates applying for a job with another employer,[^7] and knowledge of the particular aspects of a candidate’s resumé that might be attractive to other employers.[^8]
[110] While the “would likely” test is not logically impossible in the same sense as the “would have” test discussed in Cimpan, it is nevertheless inconsistent with Michaels and is unreasonable.
[111] In essence, the test proposed by Benjamin would require an employer to prove the “odds” of a terminated employee obtaining a comparable position with another employer. That approach is not consistent with the Michaels test that the onus is on the employer to establish that “by the exercise of proper industry in the search, [the employee] could have procured other employment of an approximately similar kind reasonably adapted to his abilities”. [Emphasis added]
[112] It is not clear in either Fisher or Yiu that the court is attempting to impose a different onus on employers than the “could have” test in Michaels. In Fisher, Perell J. relies on Di Tomaso, which follows the Michaels analysis. In Yiu, D. Brown J. follows the analysis of Echlin J. in Link v. Venture Steel Inc., 2008 CanLII 63189 (ON SC), [2008] OJ 4849 (SCJ) (“Link”), in which Echlin J. held (Link, at para. 49):
Nevertheless, it remains incumbent upon Venture to lead evidence that Link failed to pursue alternate employment opportunities that were of a comparable nature and that such opportunities were not only available, but that if pursued, Link could have minimized the damages sustained. [Emphasis added][^9]
[113] On appeal (cited as Link v. Venture Steel Inc., 2010 ONCA 144), the court upheld the decision of Echlin J. on the mitigation issue (and allowed the appeal in part on another issue). The court held that the mitigation defence of the employer could not succeed because the employer had not led any evidence about the availability of comparable employment, a factor consistent with the “could have” onus under Michaels. O’Connor A.C.J.O. held (Link (CA), at para. 73):
Because Venture did not lead any evidence about the availability of suitable employment, the trial judge concluded that Venture had not met the second prong of the test set out above.[^10]
[114] In none of the above cases do the courts suggest that they are seeking to alter the onus as set out in Michaels. If there is any uncertainty as to whether the employer is required to establish that the employee “could have” obtained comparable employment or “would likely” have obtained comparable employment, I would adopt a “could have” test based on the decision in Michaels and my reasons discussed above.[^11]
b) Retraining as reasonable mitigation
[115] I first address the general principles as set out in the case law and then distinguish the particular cases relied upon by Benjamin.
i) General principles
[116] A decision by a terminated employee to seek retraining is not, on its own, a basis for an employer to submit that the employee failed to reasonably mitigate damages.
[117] However, if the employer meets the Michaels test and establishes that (i) the employee did not take reasonable steps to seek comparable employment “by the exercise of proper industry in the search”, and (ii) if the employee had done so, the employee “could have procured” such comparable employment, then the employee cannot choose to engage on a new career path as a “charge” to the employer.
[118] Such an approach maintains the onus on the employer to establish (as required in Michaels), that there were comparable positions available for the employee but the employee did not take reasonable steps to pursue those opportunities.
[119] Further, this approach maintains the Michaels principle that an employee must attempt to reasonably mitigate damages arising from wrongful dismissal.
[120] If the employer can establish that the dismissed employee (i) chose to retrain instead of seeking comparable positions, and (ii) could have procured that comparable employment, a dismissed employee ought not to have a “free pass” to change careers to enhance job security or obtain better hours, and then collect damages for notice simply because of dismissal. In those circumstances, an employer should not be required to fund retraining (through payment of reasonable notice) when the employee could have obtained comparable employment.
[121] In Cimpan, the dismissed employee ignored comparable positions which were available, initially relying upon the financial ability of her husband to support her and then deciding to enroll “in a self-employment program administered by Douglas College” (Cimpan, at paras. 102 and 107).
[122] Truscott J. distinguished the cases relied upon by the plaintiff in that case, in which retraining was held to be reasonable mitigation, on the basis that in those cases, there was evidence that “the plaintiff was not successful at finding alternate employment, despite efforts” and, as such, “had to turn to self-employment” (Cimpan, at para. 105).
[123] In other words, in those cases distinguished by Truscott J. (as applies with the cases relied upon by Benjamin as I review below), the employer did not establish the facts necessary to support the requirements under the Michaels test.
[124] Truscott J. held (Cimpan, at paras. 106-07, and 109):
Here, the clear evidence from Ms Cimpan is that she did not make any attempt to obtain alternate employment, initially relying upon the financial ability of her husband to support her, and then deciding to educate herself towards opening her own day care centre.
It cannot be the law that a dismissed employee can elect to take further training for self-employment and charge that to the employer, unless the employee cannot obtain alternate suitable employment.
As the plaintiff has made no efforts whatsoever to mitigate her damages by seeking alternate employment that was available, I conclude that she has not suffered any damages at law as a result of her termination and I accordingly dismiss her action. [Emphasis added]
[125] Similarly, in Chawrun v. Bell Mobility Inc., 2013 BCSC 102 (“Chawrun”), the plaintiff, a sales account executive, ceased his job search in January 2010, two months after his dismissal in November 2009. During that two month period, the plaintiff made detailed efforts to obtain a job, keeping a handwritten log, concentrating on employer’s websites, and getting interviews (Chawrun, at paras. 119-20).
[126] After his search, the plaintiff learned that he qualified for retraining funds and was accepted into a retraining program for the “Network Administration and Security Professional Program”. He then “stopped making serious efforts to find a job” and “did not apply for any new jobs after January 24, 2010” (Chawrun, at paras. 125-27).
[127] Baker J. held that, on the evidence, “there were several prospective employers and/or head-hunting agencies looking for candidates to fill positions who were sufficiently interested in Mr. Chawrun and his existing qualifications to interview him” (Chawrun, at para. 185). Consequently, Baker J. held that the employer had satisfied its onus to establish a failure to reasonably mitigate damages as of the date the plaintiff chose to retrain, since there were comparable opportunities available to him (Chawrun, at para. 189).[^12]
[128] Baker J. held that the employer had established the employee failed to reasonably mitigate his damages. Baker J. held (Chawrun, at para. 189):
I am satisfied that the defendant has met the onus to prove that Mr. Chawrun failed to [sic] reasonable steps to mitigate his loss when he decided to withdraw from the job market and wait to be accepted into the course at BCIT for which he had applied. I do not believe that Mr. Chawrun stopped looking for work because he believed it would be impossible for him to find a position comparable to the job from which he had been dismissed, or any other job suitable to his qualifications and abilities. Mr. Chawrun did not testify that he believed this; and the evidence does not establish that a reasonable person in his circumstances would have believed that the situation was hopeless. I conclude that Mr. Chawrun simply decided that he would take the subsidy available to him and take his career in a different direction.
[129] While I do not find that an employee must believe it is “impossible” to find a comparable job before deciding to retrain, the decision in Chawrun is consistent with the principle in Cimpan that if the employer establishes that the employee did not take reasonable (or any) steps to obtain comparable employment and could have procured such comparable employment, a decision to retrain cannot be imposed as a charge on the employer. Baker J. held (Chawrun, at paras. 190-91):
Mr. Chawrun did not even testify that he did not believe he could find work to mitigate his loss during the months he was waiting to hear if his application to BCIT had been accepted, and the additional months he waited to start the course. He said he thought it would unfair [sic] to an employer to take a job when he was intending to go back to school.
Bell has not proved that there were one or more specific positions available to Mr. Chawrun that he would have been hired to fill had he continued to actively seek employment, but I conclude that the evidence available indicates that Mr. Chawrun's qualifications were of interest to prospective employers and recruiters; that he had identified a number of prospective employers and positions for which he considered himself an appropriate candidate.
[130] I adopt the principles set out in the above case law and find that if the employer establishes that the dismissed employee could have procured comparable employment and did not take reasonable (or any) steps to obtain such employment, a decision to retrain and not seek out the comparable opportunities does not constitute reasonable mitigation.
ii) The cases relied upon by Benjamin
[131] The cases relied upon by Benjamin are consistent with the principle that retraining may constitute reasonable mitigation, but will not do so if the employer meets the onus under the Michaels test. As Baker J. held in Chawrun, a dismissed employee does not mitigate damages when the employee “simply decided that he would take the subsidy available to him and take his career in a different direction” (Chawrun, at para. 189).
[132] In all of the cases relied upon by Benjamin, the defendant employer failed to meet its onus under the Michaels test. I now review the cases relied upon by Benjamin.
[133] In Kinsey v. SPX Canada Inc., 1994 CarswellBC 1144 (SC) (“Kinsey”), the plaintiff was a manager for the defendant who was “involved in the production and sale of automotive diagnostic equipment” (Kinsey, at para. 6). He was terminated in July 1993 and for six months “made considerable attempts to find employment in the automotive field” which were “unsuccessful in large measure due to the downsizing of the automotive in dustry [sic]” (Kinsey, at paras. 3, 6, and 12). In those circumstances, the court held that his decision to take himself out of the job market and retrain as a real estate agent in January 1994 was reasonable (Kinsey, at paras. 23-24).
[134] Blair J. held (Kinsey, at para. 24):
I am satisfied that the plaintiff has taken steps necessary to seek employment and mitigate the damages. In a period of tight economic restraint, employment is not easily found and I conclude that the plaintiff's enrollment in the real estate course is a reasonable and understandable action for him to take.
[135] Consequently, the employer in Kinsey did not meet its onus under Michaels to establish that the plaintiff failed to reasonably mitigate his damages when he chose to retrain as a real estate agent.
[136] In Zik v. Biasutti Drywall Services (1983) Ltd., 1996 CarswellOnt 3561 (Gen. Div.) (“Zik”), the employer did not establish that there was reasonable comparable work available to the plaintiff after termination. Further, the court held that “[g]iven the economic situation in the building industry, it was reasonable for the plaintiff to look outside of the industry for alternative employment” (Zik, at paras. 25-28).
[137] In Williamson v. Ritz Lutheran Villa, 2010 ONSC 1867 (“Williamson”), the plaintiff employee had been terminated from her position as a health care worker in a continuing care and retirement facility. The employer did not establish the availability of comparable work. Flynn J. held that there was no such comparable work since “in the Mitchell area [where the plaintiff lived] the Defendant likely has the market sown up”. Consequently, Flynn J. held that her retraining for business applications and bookkeeping was reasonable (Williamson, at paras. 57-59).
[138] In Porter v. Canadian Taxpayers Federation, 1995 CarswellSask 515 (QB) (“Porter”), the plaintiff had been employed as a research economist with the defendant. After his termination in July 1992, the plaintiff “sought other employment and proposed a compromise program of employment with the defendant, but his proposal was not accepted” (Porter, at paras. 4, 7, and 9). MacLeod J. found that since “Porter’s training and experience is in an area of low or unique demand, [h]is entering the PhD program was convenient but also reasonable under the circumstances” (Porter, at para. 14). Consequently, the employer did not meet its onus of establishing the availability of comparable work.
[139] In Christianson v. North Hill News Inc., 1993 ABCA 232 (“Christianson”), the court found that the plaintiff “knew no other printing systems than the defendant’s system” which was outdated. Consequently, her decision to attend retraining, so that she “learned the new technology successfully”, constituted reasonable mitigation (Christianson, at para. 14). The employer could not establish the availability of comparable work as the plaintiff had no experience with the new technology.
[140] In Birch v. London Drugs Ltd., 2003 BCSC 1253 (“Birch”), the plaintiff was a receiver and merchandise handler. He had a history of back injury and was off work for six months in 1999. He was on “partial W.C.B. status” and “working part-time performing light duties at the warehouse” when his employment was terminated in October 2000 (Birch, at paras. 4-6).
[141] In those medical circumstances, the employer could not establish that it would have been reasonable for the employee to seek “a warehouse/shipper job or job of a similar sort”. The plaintiff’s decision to enroll in a Canadian Securities Course, business courses, and a training course as a professional financial planner was reasonable, particularly as he was actively looking for work in a multitude of white-collar industries as soon as his first Canadian Securities course was completed a few months after his termination (Birch, at paras. 11-13, 19-20).
[142] The above cases are also consistent with the decision in Forshaw v. Aluminex Extrusions Limited, 1989 CarswellBC 153 (CA) (“Forshaw”), relied upon by the plaintiff. In Forshaw, the court held that an employee was not required to accept a position that was not “similar in terms of the scope of business to be done and the opportunity for achieving the income which he previously enjoyed” (Forshaw, at para. 18).
[143] While not a retraining case, the court in Forshaw applied the general principle that the employee had a “duty to take such steps as a reasonable person in the dismissed employee's position would take in his own interests - to maintain his income and his position in his industry, trade or profession” (Forshaw, at para. 17). [Italics in original, emphasis added]
[144] Conversely, Taylor J.A. added in Forshaw that the “former employer cannot have any right to expect that the former employee will accept lower-paying alternate employment with doubtful prospects, and then sue for the difference between what he makes in that work and what he would have made had he received the notice to which he was entitled” (Forshaw, at para. 17).
[145] Consequently, the employer in Forshaw did not meet the onus under the Michaels test to establish the availability of comparable work.
[146] Finally, Benjamin relies on the decision of Faieta J. in Paes v. Cascades Canada ULC, 2015 ONSC 7356 (“Paes”), in which the plaintiff employee was dismissed without cause by the same defendant, Cascades. However, in Paes, which did not involve a decision to retrain, Faieta J. held that, after the employee recovered from the shock of his termination, “there is no evidence that the Plaintiff would likely have found comparable employment during April 2015 or any time since he received the notice of termination in November 2014” (Paes, at paras. 18-20). Consequently, the employer failed to meet its onus to establish the availability of comparable work.
[147] For the above reasons, I find that the retraining and other cases relied upon by Benjamin are consistent with the principles in the cases relied upon by Cascades. Retraining on its own is not evidence of a failure to reasonably mitigate damages; rather, if an employer can establish that comparable work is available and the employee made a choice to retrain and not to seek comparable employment, retraining would not constitute reasonable mitigation.
[148] In the cases relied upon by Benjamin, there was evidence as to efforts to find employment, the unavailability of employment, or other reasons why it was reasonable to make a career change, which allowed the courts in those cases to find that retraining was reasonable mitigation.
[149] In the present case, by contrast, the evidence is that comparable employment was available, which Benjamin could have procured had he taken reasonable steps to seek employment. In these circumstances, the decision to retrain does not constitute reasonable mitigation.
c) A plaintiff’s entitlement to wrongful dismissal damages ends on the date when the plaintiff fails to seek alternate employment that was available
[150] A plaintiff’s entitlement to wrongful dismissal damages ends on the date when the plaintiff fails to seek comparable employment, if the employer establishes that comparable work was available and the employee could have procured such a position.
[151] In Schinnerl v. Kwantlen Polytechnic University, 2016 BCSC 2026, (“Schinnerl”), the court held that the employer’s obligation to pay notice ended when the employee chose to take a training course when comparable work was available. Steeves J. held (Schinnerl, at para. 39):
In summary, the defendant's obligation to pay notice to the plaintiff ended on June 13, 2016, when the plaintiff commenced employment with Douglas College. That was the date the plaintiff had the opportunity to work full-time and mitigate all of her damages after that date. She was entitled to choose not to take full-time employment but the cost of that choice does not lie with the defendant. I note the defendant has only paid the plaintiff up to June 1, 2016. [Emphasis added]
[152] In Cimpan, the court dismissed the action “as the plaintiff has made no efforts whatsoever to mitigate her damages by seeking alternative employment that was available” (Cimpan, at para. 109).
[153] Similarly, in Chawrun, the court held that the plaintiff’s entitlement to damages ended as of the date he unreasonably enrolled in a training course,[^13] when he terminated his efforts to find employment, since there was evidence that his “qualifications were of interest to prospective employers and recruiters; that he had identified a number of prospective employers and positions for which he considered himself an appropriate candidate” (Chawrun, at paras. 191-93).
[154] Consequently, I find that when an employee stops reasonably mitigating damages under the Michaels test, the employee has no recoverable damages from that point.
[155] At the hearing, Benjamin submitted[^14] that if an employee chooses to retrain when comparable work is available that the employee could have procured, the court can deduct that “gap” from the reasonable notice period that would have otherwise applied. By way of example in the present case, Benjamin submitted that if his reasonable notice period would have been 24 months on the facts of this case, but he failed to mitigate damages for 8 months between June 2016 and the end of February 2017 (until he began to search for work as a welder), the court could award 16 months of notice as damages, less amounts paid on termination.
[156] I do not agree.
[157] If a terminated employee chooses not to seek comparable employment that he or she could have procured after termination, the employee chooses to deprive the employer of the opportunity to avoid damages arising from the dismissal. If the plaintiff employee had made reasonable efforts and obtained such comparable alternate employment, the defendant employer would not have been exposed to any damages after that time. If the plaintiff had obtained the comparable position before the amount of months paid by the employer on termination, the plaintiff would not be entitled to damages.
[158] Benjamin’s theory is not consistent with the general principles of mitigation set out in Michaels. If a “person who has broken the contract is not to be exposed to additional cost by reason of the plaintiffs not doing what they ought to have done as reasonable men” and the failure to reasonably mitigate “debars [the plaintiff] from claiming any part of the damage which is due to his neglect to take such steps” (Michaels, at para. 5), then the employer should not be exposed to additional notice which occurred because the terminated employee failed to reasonably mitigate his or her damages.
[159] Consequently, I do not agree with Benjamin’s submission. I find that the applicable law is that the plaintiff is not entitled to recoverable losses as of the date the employer establishes under the Michaels test that the plaintiff fails to reasonably mitigate damages.
Analysis
[160] Based on the case law and facts I review above, I find that Benjamin failed to reasonably mitigate his damages by choosing to retrain rather than apply for the comparable positions available to him at Cascades.
[161] It is not contested that there were comparable jobs available for Benjamin to seek at Cascades, given the comparable remuneration and his work experience as an unskilled general labourer. It is not contested that Benjamin “could have” procured any of the three available comparable positions.
[162] On the facts of the present case, the evidence meets the even higher threshold (which I do not find appropriate) that Benjamin “would likely” have obtained a position with Cascades if he had applied. Benjamin had 28 years’ experience with Cascades as a general labourer, and there was no evidence of any concern with his performance. I accept the unchallenged evidence of Carrick, a human relations specialist within Cascades, that Benjamin was “likely” to obtain both the “labour pool” and “spare” positions at Cascades had he applied.[^15]
[163] Carrick’s belief that Benjamin could have secured any of the available positions, and would likely have secured either the “labour pool” or “spare” positions, is reasonable and supported by the evidence.
[164] Instead, Benjamin chose not to apply for the comparable positions at Cascades. His evidence that he did not apply because “none of the jobs I was qualified for (unskilled labour) were paying anywhere close to the $80,000+ I was making at Cascades”, is not supported by the uncontested facts on this summary judgment motion. Benjamin earned approximately $75,000 plus benefits in 2015, and all of Cascades’ positions were available at comparable remuneration.
[165] The only reasonable inferences to draw from Benjamin’s evidence is that:
(i) he did not consider the Cascades’ opportunities at all, since he had decided by early June 2016 that he would seek retraining as a welder rather than return as an unskilled labourer, or
(ii) his review of the available opportunities was not reasonable as there is no evidence of any inquiries he made as to the available positions which he knew (or ought to have known) about from the Cascades’ newsletter of May 18, 2016.
[166] Under either conclusion, Cascades met its onus to establish that Benjamin did not meet his obligation to reasonably mitigate his damages by applying for the available comparable positions.
[167] Consequently, I find on the facts of this case that Benjamin “could have procured other employment of an approximately similar kind reasonably adapted to his abilities”, but did not “exercise … proper industry in the search” (Michaels, at para. 11).
[168] As in Cimpan, Benjamin made his choice to retrain for personal reasons. He wanted to obtain more control of his hours and he was worried about future job security by remaining as an unskilled labourer given his beliefs about changes in Ontario’s manufacturing sector and the economic conditions at termination.
[169] However, as in Cimpan, Benjamin had comparable positions available that he could have procured. His concerns about hours and security were related to his employment as an unskilled general labourer, a position which remained available to him after termination. Benjamin was not entitled to charge his retraining to Cascades, when the retraining was to “update my skills from general labour to skilled labour”, so that he would no longer be “at the bottom of the food chain”.
[170] For the above reasons, the facts of the present case are similar to those in Cimpan and Chawrun. As of the beginning of June 2016, when Benjamin made the decision to enroll in his program, he made the deliberate decision not to investigate or apply for any comparable employment. He made no efforts to obtain such employment. He deliberately did not (or did not reasonably) investigate job opportunities which he could (and even likely) procured, with comparable, if not superior, remuneration for positions for which he was fully qualified given his experience of 28 years in general labour.
[171] Consequently, Cascades established that Benjamin failed to reasonably mitigate his damages.
[172] Benjamin’s entitlement to wrongful dismissal damages ended as of the date on which he unreasonably made the decision not to apply for a comparable job which he could have procured and instead decided to enroll in the welding course. Consequently, Benjamin has no recoverable damages (under the principles discussed above) following early June 2016 (or at the latest July 2016)[^16] due to his failure to mitigate commencing at that time.
[173] Benjamin received a total of $44,865.18 in pay in lieu of notice of termination and severance payments, which represented approximately 8 months of salary. Consequently, as Benjamin received his salary up to January 2017, well after he failed to mitigate his alleged damages when he decided to enroll in full-time school in June 2016 (or when the labour pool position was filed in July 2016), Benjamin is not entitled to any additional amounts in respect of claimed damages for common law notice.
[174] Finally, for the reasons discussed above, I do not accept Benjamin’s argument that it is appropriate to fix common law notice at 24 months (or any other number that might be reasonable based on the case law), and then deduct the 8 month period between June 2016 and the end of February 2017 when Benjamin made no attempts to find work, given the evidence of the postings at Cascades with comparable work and remuneration. Such an award would not be consistent with the principles in Michaels and the other case law I discuss above.
Order and costs
[175] For the above reasons, I dismiss the action. I dismiss Benjamin’s motion and grant summary judgment in favour of Cascades.
[176] Both counsel agreed that costs of the action and motion were to be fixed at $25,000, plus HST and disbursements, which I find to be reasonable given the importance of the issues, the extensive motion material filed, the cross-examinations, as well as the detailed factums and briefs of authorities filed with the court. Consequently, I fix costs in favour of Cascades in the amount of $25,000 plus HST, with disbursements fixed at $1,854.29 inclusive of HST, all to be paid by Benjamin to Cascades within 30 days of this order.
[177] I thank counsel for their thorough written and oral submissions which were of great assistance to the court, as well as for their civility and professionalism at the hearing.
GLUSTEIN J.
Date: 2017-04-27
[^1]: The differences in the calculation of remuneration are not significant since it was not contested that the positions available at Cascades after Benjamin’s termination were comparable to his remuneration before termination.
[^2]: Cascades also identified in its answers to undertakings 61 other job opportunities sent to Benjamin in its newsletters (before Benjamin asked to be taken off the newsletter list on November 11, 2016) which it submits would have been appropriate for Benjamin to submit an application. Given the uncontested fact that the three job postings at Cascades were comparable to Benjamin’s position as an unskilled labourer working as a line operator and with comparable remuneration, I do not address whether the additional 61 positions could serve as comparables under the relevant mitigation case law.
[^3]: Benjamin also did not raise this position in his submissions.
[^4]: Benjamin’s evidence on the reasons for his decision not to pursue the postings from Cascades was generally set out in his answers to undertakings, on which he was not cross-examined.
[^5]: I agree with Cascades’ submission that it might also be possible to extend the date for failure to mitigate until July 2016, when the labour pool position was filled. However, on the facts of the present case, it makes no difference to the analysis as Benjamin received 8 months of salary upon termination, more than either notice period ending in June or July 2016.
[^6]: (to the extent that either Fisher or Yiu even seek to change the onus, which is not necessarily so for the reasons I discuss below)
[^7]: (evidence which would be difficult, if not practically impossible, to obtain, even though not logically impossible)
[^8]: (evidence which similarly would be difficult, if not practically impossible to obtain even though not logically impossible)
[^9]: (although Echlin J. also comments that under the second part of the onus, the employer failed to demonstrate that the dismissed employee “would have been expected to secure a comparable position reasonably adapted to his abilities”: Link, at paras. 45-46)
[^10]: The court also referred to Echlin J.’s comments that the employer failed to demonstrate that the dismissed employee “would have been expected to secure a comparable position reasonably adapted to his abilities” (Link (CA), at para. 73, referring to Link (SCJ) at paras. 45-46).
[^11]: In Cimpan, Truscott J. held that the employer had satisfied its onus since “the defendant has proven to my satisfaction that there were comparable positions available through the newspaper” (Cimpan, at para. 108). I do not decide whether an employer can satisfy the “could have procured” onus under Michaels by only leading evidence as to the existence of comparable positions (as stated in Cimpan) without additional evidence as to whether the employee “could have procured” such comparable positions. That issue was not argued before me and does not arise on the facts of this case since Cascades led uncontested evidence that Benjamin both “could have” and “likely” would have procured the comparable positions.
[^12]: Baker J. limited reasonable notice damages to four months from November 12, 2009 to March 12, 2010 as he found that the one-month period around the Christmas holidays was not a period when the plaintiff could have reasonably obtained employment (Chawrun, at para. 193). This adjustment to the notice period does not alter the principle relied upon by Baker J. that the employee had no recoverable damages after his decision to retrain when there was comparable work available which he could have procured.
[^13]: (subject to the additional month to take the holiday period into account, as I set out at footnote 12 above)
[^14]: Benjamin’s counsel fairly and good-naturedly described this submission as a “Hail Mary” if the court did not accept that Benjamin’s retraining constituted reasonable mitigation.
[^15]: With respect to the “production supervisor” position, Carrick fairly stated only that Benjamin would have been a “viable” candidate if he applied. While the evidence for this position would satisfy the “could have” threshold (which I find to be appropriate), it would not satisfy the “would likely” threshold. However, having found that either the “labour pool” or “spare” position satisfied both tests, this factual distinction with respect to the “production supervisor” position is irrelevant to my reasons.
[^16]: See footnote 5 above.