Court File and Parties

COURT FILE NO.: CV-16-556560 DATE: 20170712 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KEVIN SKOV Plaintiff – and – G&K SERVICES CANADA INC. and G&K SERVICES, INC., A MINNESOTA CORPORATION Defendants

COUNSEL: Stephen M. Gillman, for the Plaintiff Howard A. Levitt, for the Defendants

HEARD: July 5, 2017

Endorsement

DIAMOND J. :

Overview

[1] The plaintiff commenced employment with the defendant G & K Services Canada Inc. (“the defendant”) on September 11, 1995. He remained with the defendant for nearly 21 years until his employment was terminated without cause on June 1, 2016. At the date of his termination, the plaintiff was 54 years of age and held the position of Customer Development Manager.

[2] To date, the defendant has paid the plaintiff eight weeks’ notice of termination ($7,345.16) and severance pay ($38,562.09), all in accordance with the defendant’s obligations under the Employment Standards Act, 2000, S.O. c.41. The plaintiff claims that he is entitled to wrongful dismissal damages equivalent to 24 months’ reasonable notice (less the above sums which he has already received from the defendant).

[3] The defendant takes the position that the plaintiff is entitled to no more than 15 months’ reasonable notice, and that any wrongful dismissal award ought to be further reduced by an additional five months due to the plaintiff’s failure to mitigate his damages.

[4] The plaintiff brought a motion for summary judgment which, after a brief one week adjournment, proceeded before me on July 5, 2017. At the conclusion of the hearing, I took my decision under reserve.

Summary Judgment

[5] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant a summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence.” As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.

[6] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the fact-finding powers set out in the 2010 amendments. The Court may only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and if summary judgment would be an affordable, timely and proportionate procedure.

[7] The overarching principle is proportionality. Summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case.

[8] As held in Sanzone v. Schechter, 2016 ONCA 566, only after the moving party discharges its evidentiary burden of proving that there is no genuine issue requiring a trial for resolution does the burden then shift to the responding party to prove that its claim has a real chance of success. The Court must address the threshold question of whether the moving party discharges its evidentiary obligation to put its best foot forward by adducing evidence on the merits.

[9] Nothing in Hyrniak or the subsequent jurisprudence displaces the onus upon a party responding to a motion for summary judgment to “lead trump or risk losing”. The Court must assume that the parties have put their best foot forward and placed all relevant evidence in the record. If the Court determines that there is a genuine issue requiring a trial, the inquiry does not end there and the analysis proceeds to whether a Court can determine if the need for a trial may be avoided by use of its expanded fact-finding powers.

Reasonable Notice

[10] I am grateful to the parties for arriving at an agreement as to the total value of the plaintiff’s remuneration (inclusive of benefits, pension plan contributions, car allowance and incentive bonus) as at termination.

[11] As there is no signed employment agreement between the parties, the Court must determine the appropriate length of reasonable notice due and owing to the plaintiff. As such, and in accordance with both parties’ submissions, I am guided by the traditional criteria set out in Bardal v. Globe and Mail which include the plaintiff’s age, length of service, character of employment and the availability of similar employment with regard to his training, experience and qualifications.

[12] While the assessment of reasonable notice is typically an art and not a science, the one Bardal criteria which was heavily disputed by the parties was the plaintiff’s character of employment. Relying upon the Court of Appeal for Ontario’s decision in Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, the plaintiff argues that the character of his employment is a factor of declining relative importance. In Di Tomaso, the Court of Appeal held that character of employment may be of less importance where an employer “attempts to use character of employment to say that low level, unskilled employees deserve less notice because they have an easier time finding alternative employment.” While the defendant may indeed be taking such a position on this motion, as will be explained hereinafter, the scope of the defendant’s argument is not so narrow.

[13] For its part, the defendant relies upon the decision of Justice Molloy in Cockshutt v. Computer Facility Services Inc., 2010 ONSC 1789 to support its position that the issue of whether a plaintiff holds a true management team position is a relevant and important factor for the Court’s assessment of reasonable notice. To quote Justice Molloy, “the character of the plaintiff’s employment is an influential factor in determining the appropriate period of notice.”

Mitigation

[14] As a terminated employee, the plaintiff had a duty to make reasonable efforts to mitigate his loss of income. A failure to discharge that duty can lead to the Court reducing the plaintiff’s reasonable notice. As held by Justice Faieta in Paes v. Cascades Canada ULC, 2015 ONSC 7356, the onus lies upon the defendants to establish that the plaintiff failed to take reasonable steps to find a comparable position and that the plaintiff would likely have found a comparable position reasonably adapted to his abilities. Typically, the Court is tolerant in assessing a plaintiff’s mitigation efforts which need only be reasonable and not perfect.

Decision

[15] As stated, the one serious bone of contention between the parties is the plaintiff’s character of employment. The plaintiff testified that the last position he held with the defendant was that of Customer Development Manager, and in that capacity he was responsible for supporting field and executive level management with the following responsibilities:

• Training and on-boarding support for new managers,
• Leading revenue enhancement projects,
• Facilitating process improvement and profit maximization initiatives,
• Acting as Project Leader on a number of important financial and operational process changes, and
• Mentoring and advising senior managers and executives.

[16] The plaintiff points to his total remuneration of approximately $120,000.00 in support of his position that he held a management position with the defendant.

[17] In response, the defendants filed affidavits from the following five individuals:

• Deen Maharaj (“Maharaj”), the defendants’ senior director of human resources,
• Kevin Fancey (“Fancey”), the defendants’ former president,
• Lanny Rahman (“Rahman”), the defendants’ director of financial operations,
• Brad Walton (“Walton”), the defendants’ Senior Manager of Used Garment Supply Chain”, and
• Salina Shaw (“Shaw”), the defendants’ Senior Office Administrator.

[18] Only Maharaj was cross-examined upon his affidavit. While the remaining four affidavits were delivered just before Maharaj’s cross-examination, the plaintiff did not proceed to cross-examine upon any of them.

[19] Rahman testified that as he was the plaintiff’s direct supervisor, the plaintiff was never part of senior management and the plaintiff did not act as a mentor to any senior management members or executives. Rahman gave evidence that the plaintiff’s functions and responsibilities were non-managerial as he did not supervise anyone.

[20] Walton testified that the plaintiff was not a “co-leader” with him or anyone else.

[21] Maharaj gave evidence that the plaintiff held a manager title “in name only” as he did not have any supervisory responsibilities and did not oversee or manage any employees.

[22] For his part, the plaintiff was cross-examined and remained relatively steadfast that he was indeed part of the management team.

[23] If the plaintiff’s character of employment was only relevant to the determination of reasonable notice, I would have likely been able to find the necessary facts and apply the relevant legal principles to the record before me to determine whether there are any genuine issues requiring a trial in this proceeding. However, in my view, the character of the plaintiff’s employment is also relevant to the issue of his mitigation efforts.

[24] For reasons that were not fully explained on the record before me, the plaintiff drafted an “updated resume” (apparently created on LinkedIn) post-termination which listed his last position with the defendant as “Director of Process Improvement and Customer Development”. The plaintiff admitted on cross-examination that he never held this position with the defendant.

[25] While the plaintiff did apply for numerous other jobs with different companies, the defendant submits that the vast majority (if not all) of these potential positions were “out of the plaintiff’s league”, and were not comparable with his actual experience and ability. The defendant points to numerous Director and Vice-President positions for which the plaintiff applied with various other companies. The defendant argues that the job positions sought by the plaintiff were no more than a “wish list”, and by “overshooting” the plaintiff has failed to discharge his duty to mitigate because none of those potential job positions were in fact comparable with his actual Customer Development Manager position. According to the defendant, the plaintiff cannot discharge his duty to mitigate by seeking to “springboard” from his actual position with the defendant into some advanced, elevated position with another company. Simply put, since none of the plaintiff’s job pursuits stood any real chance of success, the defendant submits that the plaintiff cannot be found to have discharged his duty to mitigate.

[26] The purpose of the enhanced powers under Rule 20.04 (2.1 and 2.2) are typically reserved for the Court once it is satisfied that a party has adduced a sufficient record to establish the existence of a genuine issue requiring a trial. In my view, the defendant has adduced sufficient evidence and such a genuine issue may exist. At a minimum, I cannot resolve the issue of the character of the plaintiff’s employment without the use of the enhanced powers.

[27] Accordingly, I believe that in the circumstances of this case a mini-trial of the issue of the plaintiff’s character of employment ought to be ordered. I find the character of the plaintiff’s employment to be relevant to both the determination of (a) reasonable notice and (b) whether that notice period ought to be reduced for a potential failure by the plaintiff to discharge his duty to mitigate. In the absence of a mini-trial, I cannot determine that issue on the record before me.

[28] Counsel for the parties may contact my assistant Michelle Giordano at michelle.giordano@ontario.ca to arrange a telephone case conference forthwith for the purpose of scheduling the mini-trial and a timetable for any interim steps leading up to that hearing.

[29] Subject to hearing from counsel during that telephone case conference, I would expect to have all affiants present to be cross-examined on the issue of the character of the plaintiff’s employment.

Costs

[30] The costs of this motion shall be reserved to me as the judge hearing the mini-trial to be scheduled.

Diamond J. Released: July 12, 2017