Court File and Parties

COURT FILE NO.: CV-16-544245 DATE: 20170627

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

GERALD VAN WYNGAARDEN Plaintiff – and – THUMPER MASSAGER INC. Defendant

COUNSEL: Kevin W. Fisher & Dara Hirbod, for the Plaintiff David A.S. Mills & Doug Letto, for the Defendant

HEARD: February 24, 2017

M. D. FAIETA j.

Reasons for Decision

INTRODUCTION

[1] The plaintiff, Gerald Van Wyngaarden, was employed by the defendant for almost six months and alleges that the defendant, Thumper Massager Inc. (“Thumper”), failed “… to provide proper notice or pay in lieu of notice to the plaintiff upon his wrongful termination from the defendant”.

[2] The plaintiff brings this motion for summary judgment seeking:

• $43,200.00 as pay in lieu of notice (after deducting the two weeks’ pay provided by the defendant and part-time employment income earned by the plaintiff during the notice period);
• $1,000.00 for expenses incurred to obtain alternate employment and thus mitigate damages;
• $2,000.00 for health and related benefits during the reasonable notice period.

[3] The parties provided the court with the affidavit evidence of the plaintiff (two affidavits) and a representative of the corporate defendant. The parties were not cross-examined on their affidavits and the defendant did not object to this matter being determined by way of motion for summary judgment.

[4] For the reasons described below, I grant summary judgment in favour of the defendant and dismiss this action.

BACKGROUND

[5] The plaintiff is a 59 year old man who resides in Toronto. He is a specialized senior designer who has particular knowledge and experience related to consumer electronics and rechargeable battery-operated products and has worked in this specialty for over five years.

[6] The plaintiff worked at Zebra Technologies (formerly known as Psion Inc. and Motorola Solutions) since December 2009 where he developed battery related products for high efficiency usage and high-tech businesses. His T4 slip for 2014 shows that he earned employment income of about $91,000.00 while employed by Zebra.

The Offer of Employment

[7] On January 17, 2015, the plaintiff received an unsolicited email from Paul Sajgalik, the General Manager of the defendant Thumper Massager Inc. (“Thumper”), located in Markham, Ontario, about joining Thumper to help design a new line of battery powered products. The email states:

Long-time no speak. I hope all is well with you and your family. Thumper continues to grow, we have moved to a new location that is better tailored for our needs. Over the past few years we have grown solid relationships with mold makers, metal stampers and Electronic Designers. We now have in house prototyping capabilities, including a 3D printer. We are planning the launch of a new series of cordless massagers. I’m considering hiring a full time in house designer for this initiative, as it will probably take upwards of 3 years to launch the entire product line. This all leads me to you. Not sure what you are up to on the work front. If you are happy with what you are doing now, great. If not, please give me a call and we can talk some more. I can be reached on my cell [redacted]. [Emphasis added.]

[8] The plaintiff states that he was quite surprised to receive the above email as he had not been in contact with Sajgalik for eight years. The plaintiff responded about one hour later by email:

Hi Paul. Funny you should message me at exactly this time. Quite coincidental, I’ve been thinking I should visit! I’m not sure if I’m ready to jump ship here but we sure should meet soon.

[9] Sajgalik responded about one hour later by email. He stated:

Let me know when you want to come over. I will be in this week from Monday to Thursday, then will be travelling for 10 days. I’m in the office today ‘til 5 pm, trying to get caught up from Christmas shutdown.

[10] The plaintiff and Sajgalik met on January 21, 2015. The plaintiff’s evidence is that Sajgalik told him that “… the opportunity with Thumper would be long-term, interesting and full-time.”

[11] Sajgalik’s evidence is:

The position that I discussed with [the plaintiff] was that of Designer, with the aim of developing a handheld massage machine. While the intended end-product was the design of the massager, I informed [the plaintiff] that there were a number of non-design aspects to the position. These included maintenance of our assembly plant and reporting to upper management on his work. I also informed [the plaintiff] that these non-design duties would comprise approximately 50 per cent of the Designer position. During my discussions with [the plaintiff] about his potential employment, he represented himself as an experienced designer. [The plaintiff] created the impression that based on his past experience, he would be able to move development of new products along at an accelerated pace and with minimal transition time. The ability to accelerate the design of the massager was important to Thumper, and [the plaintiff] was made aware that Thumper was only interested in hiring an experienced Designer.

[12] On January 22, 2015, the plaintiff sent the following email to Sajgalik:

Good meeting you yesterday. The whole operation is looking great! Attached, some light reading for you. Choices are pretty much ProE (Creo) or Solidworks but a good overview.

[13] On January 23, 2015, Sajgalik responded:

Thanks for coming by Gerald, great catching up with you. All our current products have your name all over them, would be great to add new items to the existing assortment.

[14] The plaintiff sent the following email on January 27, 2015 to Sajgalik:

I can’t really think of a better person than me to help you continue developing the Thumper line. My recent Motorola experience with battery design, manufacture and regulatory dovetails nicely with your plans. And though I’d love to just do the work without thinking of the money side, I do have responsibilities to family and financial institutions. Rather than making demands or requests, I’ll just say that I’ve been enjoying the benefits of a large corporation with a salary in the $85K per year range with benefits and 3 weeks vacation. Let me know what you’re thinking and we’ll go from there. Last … a few complications in timing. Due to the incomprehensible HR and expensing systems at Motorola, I’m waiting for reimbursement of significant (to me) amount of cash. It’s a month overdue and I’d like to have that cash in hand before leaving. I’m also in the middle of expensive (insured) dental work which is scheduled to continue into March. Anyways, just normal life stuff, nothing that can’t be worked around, let’s talk when you get back.

[15] On January 29, 2015, Sajgalik sent the following email to the plaintiff:

I could not agree with you more Gerald in that you’re the best man for the job. The salary issue poses a problem. Small companies such as ours cannot compete with the Motorola monsters of the world. Our income is derived from the sale of our goods and unfortunately we only sells thousands of units per year, not millions per year. As such we are prepared to pay in the range of $70,000.00. …

[16] On February 5, 2015, the plaintiff sent the following email to Sajgalik:

Hi Paul, The head end creative work I’d enjoy doing. I can sketch and do form development. However, I have to work a lot harder at it that (sp) Peter does, I don’t have the presentation experience nor the fluid grace that Peter had with a pencil and markers. Sorry for the delay in reply. The money side of it I must say, I’m having trouble talking myself into. I’m not sure that I can afford a return to 2007 income. However, I’m not flatly refusing, I do understand the difference between the large corporation and the rest of us.

[17] Sajgalik sent the following email on February 17, 2015 to the plaintiff:

Find attached the offer. I will be out of the office from March 25 to April 6 and really want to be here when you start. As far as the bonus is concerned, it is discretionary and based on overall company performance. I can’t promised anything in this area and I understand you have obligations at your end. The only way I can guarantee meeting your needs is by raising the level of our original salary offering. Please read through the offer, sign it, date it and email me a scanned copy so I can pass it on to HR and get started on ordering furniture, a computer and software. I look forward to working with you.

[18] The offer of employment from the defendant, dated February 17, 2015 (“Employment Contract”), that accompanied the above email states:

We are pleased to present you, with our offer for the position of Designer. In this position you will be reporting to Paul Sajgalik, General Manager of Thumper Massager Inc. If you accept this offer, we ask that you report to work on Tuesday, April 7 at 8:30 AM. Your work schedule will be 8:30 AM to 4:30 PM, Monday through Friday. You are entitled to two 15 minute breaks and a 30 minute lunch. The yearly salary for this position is $80,000. You will be entitled to 3 weeks vacation every year. You will be eligible to join our company paid prescription drug and dental insurance plan after 3 months of service. There is a 6 month probation period associated with this role. During this time we will review your performance and development. This work offer will automatically become permanent upon successful completion of your probation period. Your professional performance and compensation package will be reviewed yearly, every July. … [Emphasis added.]

[19] The defendant accepted the above offer on the same day.

The Plaintiff’s Performance

[20] The plaintiff commenced work with the defendant on April 7, 2015.

[21] The plaintiff and the defendant have completely different views on the plaintiff’s performance while he worked for the defendant.

The Plaintiff’s Evidence

[22] The plaintiff states:

While at Thumper I completed significant work and provided crucial information to Thumper on a battery test plan with a total of fourteen (14) different working prototypes in three (3) different projects that I was developing for Thumper. I worked with a small team at Thumper with a focus on developing prototypes and conducting ergonomic, mechanical layout, motor and “feel” testing as well as developing and conducting a full battery test program. This was the ground work required for designing a completed product. Most of my time working at Thumper was spent in battery testing and development with my remaining time spent on design work focused on producing prototype parts and assembly. There was a lot of complexity in these tasks as the team and I were working on three product lines involving very different products, each of which required single battery design. At all times Mr. Sajgalik indicated that he was impressed by the work I was doing and at no time was I advised that I was underperforming or that my work was of poor quality. At no time was there any suggestion of any deficiencies in the way I was performing my work. Mr. Sajgalik did not have the necessary design skills to complete this work and relied on me because I had these advanced skills. Mr. Sajgalik actually has minimal CAD/CAM computer skills. I do not believe that he was actually able to be critical of my technical or to take over any of my tasks as he did not have the knowledge and skills needed to do so. Mr. Sajgalik was fully aware of the progress I was making on the project and the speed at which I was developing, designing, and delivering the prototypes contemplated by the project. By early October 2015 I had almost singlehandedly developed fourteen (14) fully working prototypes for Thumper. I completed all the background technical work required in order to focus in on the development and styling of the first of the products that had been completed by the company. I believe that these tasks would have taken much longer to achieve by less knowledgeable and experienced designers and developers.

The Defendant’s Evidence

[23] Sajgalik’s evidence is the plaintiff was provided with the following list of duties when he began to work for the defendant and that this list mirrors what he told the plaintiff prior to his acceptance of the above offer of employment:

Engineering & Design Responsibilities – Updated March 2, 2015 Design:

• New Product Design, including mechanical parts, 3D surfaces, integration of components, complete assembly of product, conceptual package design
• Coordination with Electrical and Electronic Engineer for implementation of circuit boards, motors, cables, connectors, batteries, etc.
• Compliance with UL, CSA, CE, Emissions standards worldwide. Communication with Certification agencies and third party Engineering resources.
• Participation in the creation of operator manuals and sales literature as needed, with respect to Engineering, Design and Performance of products.
• Participation in the selection of colors, materials, labeling, decoration and packaging of new and existing products.
• Creation of samples for new and existing products with respect to form, function, color, feel, sizing, etc. Production Support:
• Conceptualization of the product assembly process, including assembly station layouts, the creation of assembly jigs, establishing and testing the assembly process, and instructing existing plant personnel on how to manufacture new products.
• Troubleshooting problems and solutions on the Assembly line, including existing tooling and equipment.
• Troubleshooting product issues and finding solutions to recurring quality problems.
• Purchasing new and maintaining existing equipment on the manufacturing line. Purchasing Support:
• Participation in troubleshooting and solving tooling problems at our suppliers’ facilities.
• Coordination and participation in initial tooling approvals and part quality testing.

[24] Sajgalik states that there were many problems with the plaintiff’s work:

• Inability to maintain and manage the assembly plant
• Failure to deal with accounts
• Inability to perform design-related tasks
• Unauthorized time off work on three days

[25] Sajgalik states that shortly after the plaintiff began working for the defendant it became apparent to him and other members of management that the plaintiff was struggling in this work.

[26] On June 4, 2015 Sajgalik conducted a performance review with the plaintiff. He states:

At the review, I attempted to encourage [the plaintiff] to become more active in the development of the massager that he was hired to produce. I informed him that I was unsatisfied with the quality of his work and that his output was comparable to a graduate entering the workforce, not to a senior Designer. During this assessment, I also informed [the plaintiff] that his competencies with Microsoft Excel and Office were insufficient. He was asked to enrol in a training course at Seneca College. [The plaintiff] was told that his enrolment costs and time would be paid for by Thumper. While he did eventually attend a course near the end of his employment at Thumper, [the plaintiff’s] communication skills remained poor. Attached as Exhibit “E” is a copy of the receipt for that course. Attached as Exhibit “F” is an email chain between myself and [the plaintiff]. The email chain shows the typical difficulty in understanding [the plaintiff’s] reports. As a result of [the plaintiff’s] inability to complete the non-design functions of his role, I took over so that he could focus on his represented strength – design. With the refocusing of [the plaintiff’s] position into his preferred area, design, he was asked to speak at meetings and provide ideas about potential new products. Unfortunately, this too appeared to be too much for [the plaintiff]. At an important corporate meeting scheduled to display new designs, [the plaintiff] was asked to speak. He was unprepared to present his ideas and spoke about outdated products and technologies. By this time it was clear that [the plaintiff] needed greater assistance to fulfil the role he was hired for. To provide this, I promoted another employee…, as a manager. In part, [his] function was to monitor and assist with [the plaintiff’s] day-to-day activities. This arrangement was made on August 20, 2015. For [the plaintiff] to be required to complete a task discussed at the meeting, all three of us would need to agree that it was a reasonable objective for the week. To ensure that there was no misunderstanding, I would take a record of the meetings and send a copy of the planned deliverables to [the plaintiff]. Sometimes these records were photographs of plans we made on a whiteboard, sometimes they were handwritten notes. Attached as Exhibit “G” is a copy of one such whiteboard photo. Attached as Exhibit “H” is a copy of handwritten notes. On or about August 28, 2015, we had our first meeting and set deliverables. The objectives were agreed upon and [the plaintiff] was provided with a written list of what he needed to accomplish. Unfortunately, on the first week of his strategy being implemented, [the plaintiff] failed to fulfil his objectives. This turned into a running theme and [the plaintiff] always failed to complete the majority of his objectives.

[27] Sajgalik states that, in April and May, 2015, he sent several emails to the defendant offering enrolment in various training courses.

The Plaintiff’s Reply Evidence

[28] In response to the Sajgalik affidavit, the plaintiff amongst other things states:

Contrary to the allegations set out in Mr. Sajgalik’s affidavit, I did not misrepresent my level of experience in product design. I did not have, nor did I make any representations at all. While Mr. Sajgalik has tried to allege after the fact that there were complaints, this is completely untrue. Neither he nor Thumper has produced a single note, email or any document that in any way suggests any complaint as to the work I was doing, or as to the alleged performance review Mr. Sajgalik states occurred 2 months after I began my employment with Thumper. No such performance review ever took place. I completed significant work and provided crucial information to Thumper during my employment. I singlehandedly conducted all of the battery, electronic and ergonomic testing, CAD modeling, printing of 3-dimensional parts and assembled a total of fourteen (14) prototypes for the three (3) different cordless electronic products I was designing for Thumper, including an eight (8) sphere professional massage unit, a twin sphere long handled unit and a basic hand held unit. Contrary to what is stated in paragraphs 17-20 of Mr. Sajgalik’s affidavit, I was not hired to manage the assembly plant. Thumper already had a designated plant manager. The extent of my managerial duties was limited to technical oversight…I managed and maintained the assembly plant to the extent that I was required to do so and was never advised of any problems in relation to the plant. Contrary to the statements in Mr. Sajgalik’s affidavit, there were never any “corrective actions” undertaken as no issues were ever raised with my performance. As stated above, Thumper never informed me of any deficiencies in the quality of my work, nor did Thumper request that I engage in additional training courses. In early summer 2015, Mr. Sajgalik requested that I present some of my design initiatives and ideas for the new electronic massagers at a corporate meeting. Contrary to the statements set out in the Affidavit, I was never unprepared to speak at these meetings. Furthermore, and in addition to, the design meetings outlined above, I complied with my obligations to take part in weekly progress meetings between myself, Mr. Sajgalik and Mr. Madhessian. … These meetings were simply a summation of the work that was already being done to ensure that Mr. Sajgalik was kept apprised of the progress I was making. At no point in time prior to or during any of these weekly meetings was I ever advised by Mr. Sajgalik or Mr. Madhessian that these meetings were designed to “monitor” my performance and implemented to ensure I met objectives or quotas of any sort. It is my belief that this is another made up assertion in an attempt to try and justify Thumper’s actions as a response to my claim.

Termination of Employment

[29] The plaintiff’s employment was terminated on October 5, 2015, just two days before the end of his probationary period.

[30] The plaintiff states:

It is my belief that once Thumper obtained the critical information they required from me to take their product to market, just six (6) months into my employment, my position was terminated by Mr. Sajgalik. It was done without notice or warning. On October 5, 2015, Mr. Sajgalik met with me for just a few minutes and only stated that “things were not working out”. He provided no reasons to support his statement and did not raise any concerns with my performance or work product. He did not provide me with a termination letter or email. He simply had a Record of Employment issued to me. I was in complete shock. This was the first time I had received any indication from Mr. Sajgalik that “things were not working out”. I was stunned as I knew that I had provided excellent services to Thumper. I had left my secure and stable employment with Zebra Technologies to join Thumper thinking that my work and achievements would be valued as this was what I was led to believe when I was recruited. Mr. Sajgalik offered me two weeks pay. I did not accept it but it was paid to me in the gross amount of approximately $3,070.00. At no time prior to my termination did Mr. Sajgalik or anyone else on behalf of Thumper ever advise or warn me that if I did not have a perfect performance record, I would be terminated. I did not receive a negative performance review or a poor performance review.

[31] Sajgalik states:

The decision to terminate [the plaintiff] prior to the end of his probationary period was made after continuous assessment of his performance and numerous attempts to help him with his role. The decision was made because [the plaintiff] was thoroughly unsuitable for the Designer position he contracted to perform. The decision was also made because [the plaintiff] lacked the reliability, compatibility and judgment to give him a future with the company. Before the beginning of his employment, [the plaintiff] misrepresented his abilities and expertise. Even with significant assistance from Thumper and its staff, he could not complete the responsibilities related to his position. As a result of this poor performance, I believe that Thumper was entitled to terminate [the plaintiff] either for cause, or pursuant to the probationary clause contained in his employment contract, without notice, and without pay in lieu of notice. Thumper made significant attempts to assist [the plaintiff] achieve success in his position. However, despite all efforts, he was simply unable to fulfil the responsibilities of the role he was hired for.

[32] On Thursday, October 8, 2015, the plaintiff sent the following email to Sajgalik:

Just wanted to let you know I’m still thinking about our conversation on Monday and your severance offer. I’m getting some advice and will be in touch with you shortly.

[33] On October 9, 2015, Sajgalik responded by email:

I will ask Queenie to issue your final pay, including your Record of Employment and the one week dismissal pay mandated by the Ministry of Employment in lieu of notice. My offer of 3 weeks additional pay still stands. I will need you to sign a release form prior to issuing the last payment. Let me know once you’ve received the necessary advice.

ISSUES

[34] The following substantive issues are raised on this motion for summary judgment:

• Is the plaintiff bound by the Employment Contract which provides that he is subject to a six month probation period?
• Is the plaintiff entitled to reasonable notice of termination of his probationary employment unless the defendant establishes that he was terminated for cause?
• Was the defendant’s assessment of the plaintiff’s suitability for continued employment performed in bad faith?
• What is the appropriate period of reasonable notice?

ANALYSIS

[35] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[36] In Hryniak v. Mauldin, 2014 SCC 7 at para. 49, the Supreme Court of Canada stated the following:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[37] Rule 20.04(2.1) provides that in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[38] In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial: see Rule 20.02(2). Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried: see Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14 at para. 11. A court is entitled to assume that the record contains all the evidence that the parties would present if the matter proceeded to trial: see Aronowicz v. EMTWO Properties Inc., 2010 ONCA 96 at paras. 17-19.

[39] On a motion for summary judgment, a judge may grant judgment in favour of a responding party, even in the absence of a cross-motion for such relief, so long as it is within the scope of the motion: see Singh v. Trump, 2016 ONCA 747 at paras. 147, 148.

[40] As noted earlier, this motion proceeded on the basis of affidavit evidence filed by both parties. There was no cross-examination on these affidavits. While there are differing accounts of the plaintiff’s hiring and performance, I find that I am able to make a “fair and just” determination of the merits of the motion for summary judgment which I find turns primarily on the question of whether the defendant terminated the plaintiff’s probationary employment in bad faith.

Issue # 1 – Is the plaintiff bound the Employment Contract which provides that he is subject to a six month probation period?

[41] The plaintiff submits that the probation period was unilaterally imposed by the defendant, not drawn to his attention and not expressly agreed upon. He states that he had known that the defendant was offering probationary employment, then he would have never left Zebra. There is clearly no merit to this position. The Employment Contract is one page long. The fourth paragraph of the Employment Contract, which is in the middle of the page, states in plain language that the plaintiff’s employment is probationary for six months. A person who signs a contract is taken to have read the contract that he or she signs and to have agreed to its terms.

[42] The plaintiff submits that he expected to be employed by the defendant for the estimated three-year duration of the development project that attracted him to this position; however, any such expectation should have been tempered by the clear language of the Employment Contract which made his employment probationary for six months. I find that a reasonable person in the same circumstances as the plaintiff would have understood that his employment was probationary for six months. As Justice M.A. Sanderson noted in Nagribianko v. Select Wine Merchants Ltd., 2016 ONSC 490 at para. 43 (Div. Ct.):

Probationary employment, on its face and by its nature, is inconsistent, with any inducement or promise of long-term employment.

[43] Accordingly, the plaintiff’s employment with the defendant was subject to the six month probationary period described in the Employment Contract.

Issue #2 – Is the plaintiff entitled to reasonable notice of termination of his probationary employment unless the defendant establishes that he was terminated for cause?

[44] At common law, an employee hired for an indefinite period can be dismissed without cause, but only if the employer gives the employee reasonable notice. This principle is rebuttable if the employment contract clearly specifies some other period of notice, so long as it meets the minimum legislative standards: see Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 at paras. 15, 16.

[45] The plaintiff submits that he is entitled to common law notice or pay in lieu thereof because he was terminated during the probationary period without cause. In this respect, the plaintiff relies solely on a decision of the Ontario Small Claims Court in Budge v Dickie Moore Rental Inc at para. 47 (ON SCSM).

[46] The opposite, and better view, was taken by the Ontario Divisional Court in Walford v. Stone & Webster Canada, [2006] O.J. No. 4431, where the court held, at para. 11, that a probationary employee is subject to termination without notice or cause. This principle was adopted by the Divisional Court in Nagribianko, at paras. 31-22, and in Barton v. Bowerman (December 1, 2016) Ottawa, 16-DC-2178 (S.C.J.), where Justice Robert Smith stated at para. 7:

I agree with the Deputy Judge’s findings that the employer was entitled to dismiss the Employee at any time during the probationary period without cause. The employer does not have to show cause to terminate an employee on a probationary employment contract and does not have to continue employing the employee for the full probationary period. [Emphasis added.]

[47] Accordingly, an employer is not required to provide reasonable notice in order to terminate an employee without cause during a probationary period unless, as discussed below, the dismissal was in bad faith.

Issue #3 – Was the defendant’s assessment of the plaintiff’s suitability for continued employment performed in bad faith?

[48] The plaintiff submits that the defendant terminated the plaintiff’s employment in bad faith. The plaintiff states that the defendant derived significant benefits from his expertise and the work that he had completed during his period of employment. The plaintiff submits that his employment was terminated once the defendant “…the obtained the critical information they required from me to take their product to market…”.

[49] In Nagribianko, at paras. 33, 36, the court stated:

A probationary employer must extend to the probationary employee a fair opportunity to demonstrate suitability for permanent employment. However, in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons. Probation is a testing period for the employer to assess a probationary employee’s suitability. It offers the employer an opportunity to determine if the employee will work in harmony with the organization, if hired permanently. Suitability includes considerations of the probationary employee’s character, ability to work with others, and ability to meet the employer’s present and future standards. … Where the employment of a probationary employee has been terminated for unsuitability, the employer’s judgment and discretion in the matter cannot be questioned. All that is required is that the employer show that it acted fairly in determining whether the probationary employee was suitable and that he/she was given a fair opportunity to demonstrate his/her ability. [Emphasis added.]

[50] Where an employee alleges that an employer engaged in bad faith conduct, the onus is on the employee to establish that the employer engaged in such conduct: see Mulvihill v. Ottawa (City), 2008 ONCA 201 at para. 45.

[51] There is little evidence of ulterior motive for the termination of the plaintiff’s employment, other than his own assertions described above. On the other hand, Sajgalik’s evidence, summarized above and supported to some extent by the exhibits to his affidavit, outlines the defendants many concerns regarding the plaintiff’s ability to meet the defendant’s expectations.

[52] Having considered the evidence, I find that the defendant provided the plaintiff with a fair opportunity, over almost six months, to demonstrate his suitability for employment. I also find that the defendant did not act in bad faith in that the defendant, honestly and without ulterior purpose, considered matters relevant to suitability for permanent employment in deciding to terminate the plaintiff’s employment during the probationary period.

Issue #4 – What is the appropriate period for reasonable notice?

[53] In the event that I am wrong in any of the above conclusions, I will address the length of reasonable notice that the plaintiff should have received upon termination of his employment.

[54] The applicable legal principles for determining reasonable notice were described by Justice Perell in Paquette v. TeraGo Networks Inc., 2015 ONSC 4189 as follows:

• An employee who is dismissed without reasonable advance notice of termination is entitled to damages for breach of contract based on the employment income that the employee would have earned during the reasonable notice period, less any amounts received in mitigation of the loss (para. 21);
• The purpose of requiring reasonable notice is to give the dismissed employee an opportunity to find other employment (para. 22);
• In determining the length of notice, a court must apply the following considerations, on a case by case basis, in order to determine what constitutes reasonable notice of termination:
  • The age of the employee at termination;
  • The length of employment;
  • The character of employment;
  • The availability of similar employment having regard to the experience, training and qualifications of the employee (para. 24);
• The reasonableness of the notice turns on the facts of each case. There is no “right” figure for reasonable notice. Most cases yield a range of reasonable figures (para. 25);
• A longer notice period will usually be justified for older long-term employees (para. 31);
• Generally, the longer the duration of employment, the longer the reasonable notice period (para. 30);
• A longer notice period is provided for senior management or highly skilled and specialized employees and a shorter period is provided for lower rank or unspecialized employees (para. 29);
• Economic factors such as a downturn in the economy or in a particular industry or sector of the economy may indicate that an employee may have difficulty finding another position and may justify a longer notice period (para. 27).

[55] As noted, the plaintiff was 59 years old when his employment was terminated. He had been employed for almost six months by the Defendant as a designer. He did not exercise any managerial or supervisory functions. The only evidence of the availability of similar employment is the plaintiff’s evidence that, as of June 9, 2016, he was unable to secure full-time employment; although, he had worked as an independent contractor, including for a period from February, 2016 until May, 2016, and had rendered invoices that total $13,730.00 exclusive of HST. The plaintiff submits that a longer notice period is appropriate because the plaintiff was induced to leave Zebra and work with the defendant. As noted earlier, I reject the submission. The plaintiff was approached with an initial email on January 17, 2015, asking him to contact Sajgalik if he was unhappy with his current employment. The plaintiff was not approached with an offer of long-term employment or an increase in remuneration. The fact that the Employment Contract stipulates that the plaintiff’s employment is probationary clearly negates any expectation of secure, long-term employment that might have previously been held by the plaintiff.

[56] The plaintiff relies on Jackson v. Makeup Lab Inc., [1989] O.J. No. 1465; Chang v. Simplex Textiles Ltd., [1985] O.J. No. 16; McIntosh v. C.T.F. Supply Ltd., [2001] O.J. No. 5062; Antidormi v. Blue Pumpkin Software Inc., [2004] O.J. No. 3888; Hooker v. Audio Magnetics Corp. of Canada, [1984] O.J. No. 2588; and Poniecki v. Polysar Ltd., [1987] O.J. No. 1124. The defendant relies on Kellett v. Madara Investments Ltd., [1987] O.J. No. 1376; Fisher v. Hirtz, 2016 ONSC 4768; and Squires v. Stanley Hardware, [1991] O.J. No. 3373.

[57] The Jackson, Chang, McIntosh and Antidormi cases are distinguishable because in those cases the plaintiff was induced to leave his former employment.

Case	Age	Years of Services	Character of Employment	Reasonable Notice
Jackson v. Makeup Lab Inc., [1989] O.J. No. 1465	38	10 weeks	Plant manager	8 months
Chang v. Simplex Textiles Ltd., [1985] O.J. No. 16 (C.A.)	44	10 weeks	Plant manager	8 months
McIntosh v. C.T.F. Supply Ltd., [2001] O.J. No. 5062		3 weeks	Sales representative	7.5 months
Antidormi v. Blue Pumpkin Software Inc., [2004] O.J. No. 3888	41	6 months	Account executive	12 months
Hooker v. Audio Magnetics Corp. of Canada, [1984] O.J. No. 2588	55	1 year	Marketing specialist	14 months
Poniecki v. Polysar Ltd., [1987] O.J. No. 1124	62	8 years	Design draftsman	12 months
Kellett v. Madara Investments Ltd., [1987] O.J. No. 1376		22 months	Chef	7 weeks
Fisher v. Hirtz, 2016 ONSC 4768	56	16 months	Painter	Two months
Squires v. Stanley Hardware [1991] O.J. No. 3373	59	17 months	Stationary engineer	Two months and nine days

[58] In my view, the above case law does not provide a great deal of assistance.

[59] The plaintiff’s position is that he is entitled to 12 months reasonable notice. The defendant’s position is that the plaintiff is entitled to 1 months’ reasonable notice.

[60] Having regard to the four factors described above, it is my view that a period of reasonable notice in these circumstances is four months.

[61] The applicable legal principles in relation to an employee’s duty to mitigate his losses were also outlined in Paquette, at paras. 43-49:

• An employee has a duty to mitigate his losses and is not entitled to recover for losses that were avoidable;
• Similarly, an employee must take into account benefits from actually mitigating his loss;
• The onus is on the defendant to establish that the employee failed to take reasonable steps to find a comparable position and that the employee would likely have found a comparable position reasonably adapted to his abilities; [Emphasis added.]
• In assessing an employee’s efforts at mitigation, the courts are tolerant, and the employee need only be reasonable, not perfect;

[62] I accept the plaintiff’s evidence, including his record of searching for work from October 2015 until April 2016, that he diligently looked for comparable full-time work during the four month period following the termination of his employment.

[63] The plaintiff claims $1,000 for expenses (for internet fees, printing costs, cell phone expenses and travel expenses) incurred to obtain alternate employment. Given (1) the lack of supporting documentation; (2) that some of these expenses would likely have been incurred in any event; and, (3) the period of reasonable notice is four months rather than twelve months as claimed, I find that it is too speculative to award any damages for out of pocket expenses. The plaintiff also claims $2,000.00 for health and related benefits during the reasonable notice period. I award the sum of $407.00 for dental expenses incurred during the four-month period of reasonable notice. The other health expenses claimed were incurred outside of the period of reasonable notice.

CONCLUSIONS

[64] There is no genuine issue requiring a trial. The plaintiff’s claim is dismissed as this motion for summary judgment is granted in favour of the defendant. The plaintiff’s employment with the defendant was probationary. I find that the defendant did not terminate the plaintiff’s probationary employment in bad faith.

[65] I encourage the parties to resolve the issue of costs. If the parties are unable to reach an agreement on costs, then the defendant shall provide the court with its written costs submissions, not to exceed three pages in length exclusive of an outline of costs and any settlement offers, within one week of today’s date. The plaintiff shall have two weeks from today’s date to provide its reply on the same terms.

Mr. Justice M. Faieta

Released: June 27, 2017