Ste-Croix v. Al-Hashimi and Jawad Dentistry, 2017 ONSC 7447

CITATION: Ste-Croix v. Al-Hashimi and Jawad Dentistry, 2017 ONSC 7447

COURT FILE NO.: CV-16-559800

DATE: 20171213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mary Ste-Croix, Plaintiff

– and –

Al-Hashimi and Jawad Dentistry Professional Corporation, Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Jean-Alexandre De Bousquet and Daria Chyc, for the Plaintiff

David Mayzel, for the Defendant

HEARD: December 12, 2017

REASONS FOR JUDGMENT

[1] The Plaintiff seeks summary judgment under Rule 20.01(1) in this wrongful dismissal action.

[2] The Plaintiff was employed for 17 years as a receptionist and sometimes bookkeeper for the Defendant dental practice. During her final year of employment she earned $32,500. In July 2016, she was terminated without cause at the age of 51. The Defendant paid her the statutory benefits to which she was entitled under the Employment Standards Act, which came to 8 weeks’ pay. Beyond that, the Plaintiff received no notice of termination and no pay in lieu of notice.

[3] There are two issues of contention between the parties: a) the number of months’ income the Plaintiff should receive as pay in lieu of notice, and b) whether the Plaintiff made reasonable efforts to mitigate her damages. Counsel for the Defendant submits that these issues are so factually contentious, and so dependent on findings of witness credibility, that they require a trial. Counsel for the Plaintiff submits that there is a disagreement as to how to apply the law to the facts but that there are virtually no contentious facts at all between the parties, and so there is no genuine issue for trial.

a) Notice period

[4] Arriving at a reasonable notice period is not as formulaic as it is sometimes made out to be. A court may have regard to the character of the employment, the length of service, the employee’s age, training, and qualifications, the availability of new employment and the prospects of finding suitable employment: Love v Acuity Investment Management Inc., 2011 ONCA 130, at paras 18, 21; Bardal v Globe & Mail Ltd., 1960 294 (ON SC), [1960] OJ No 149 (Ont SC).

[5] Counsel for the Plaintiff sites a number of comparable cases where the range of notice periods was between 12 and 19 months. In Kapelus v University of British Columbia, 2002 BCSC 741, a notice period of 19 months was held appropriate for an administrative assistant who had worked for 16 years before being fired. In Reid v Stratford General Hospital, 2007 CarswellOnt 8645 (SCJ), a notice period of 12 months was held appropriate for an administrative assistant who had worked for 20 years in a hospital. And in Lee v 1554478 Ontario Inc., 2008 55467 (SCJ), a notice period of 15 months was held appropriate for an entry level store clerk who had worked for 16 years.

[6] Counsel for the Defendant sites a number of comparable cases where the range of notice periods was between 8 and 10 months. In Liebmanv Trafalgar Industries, [2004] OJ No 582 (SCJ), a notice period of 8 months was held appropriate for chemical analyst who had worked for 13 years before being fired. In Fisher v Lakeland Mills, 2008 BCCA 42, a notice period of 10 months was held appropriate for an office clerk who had worked for 19 years. And in Maguire v Sutton, [1998] BCJ No 138 (BC SC), a notice period of 9 months was held appropriate for a dental receptionist who had worked for 19 years.

[7] Extrapolating from these cases, and giving heaviest weight to those that are most similar in type of work and years of tenure, counsel for the Plaintiff submits that the reasonable notice period here should be 15 months. Similarly extrapolating from the case law and giving added weight to those that are most similar to the Plaintiff in terms of type of work and years of tenure, counsel for the Defendant submits that the reasonable notice period here should be 7-8 months.

[8] In my view, counsel for the Defendant is a bit low in identifying the appropriate number of months. The Plaintiff’s job was described as straddling administrative assistant and medical office receptionist. Given the range outlined in the case law for this type of position and for this length of time, the appropriate notice period here is 12 to 15 months.

b) Mitigation

[9] The Plaintiff kept a careful, handwritten log of her mitigation efforts. Although at one point during her 15-month job search she inadvertently deleted some of her emails, her log is an accurate and credible record of her efforts. Counsel for the Defendant complains that the Plaintiff’s log does not contain enough information as it does not always state the name of the person with whom the Plaintiff spoke in making a telephone job inquiry; but he does not say that the information that is there is inaccurate. There is no reason to doubt its accuracy or credibility.

[10] The Plaintiff applied to 89 different private sector jobs plus some 13 public sector jobs over the course of 15 months. Her job log includes 676 separate job entries, including telephone cold calls, dropping off resumés, visits to employment offices, etc.

[11] The Defendant says that this was not enough. The job log shows that there were often only 4 or 5 applications or job inquiries during a single work day, and he says the Plaintiff should have done more. To prove his point, counsel for the Defendant included in his client’s Responding Record in the litigation a printout of some 2,170 job opportunities that the Defendant found on the internet that he says the Plaintiff should have looked into but did not.

[12] It is fair to say that counsel for the Plaintiff was less than impressed with this evidence submitted by the Defendant. As he describes it, the Defendant’s list of jobs was nothing but a raw, undigested list from the internet that the Defendant and his counsel did not appear to have even read before inserting in their Responding Record. Of the 2,179 alleged missed employment opportunities, only 1,247 were original entries – the rest were duplicates. Of those, only 253 were appropriate in terms of proximity and job skills. Some of the jobs were in other cities, including in the United States, while others were for dentists rather than for dental receptionists. Counsel for the Plaintiff submitted, with some justified derision, that his client is a suburban Toronto dental receptionist, and can neither work in the United States nor practice dentistry anywhere. Of the 253 jobs that could be considered in any way real opportunities, the Plaintiff actually applied to 81 of them.

[13] Moreover, counsel for the Plaintiff argues that the Defendant did absolutely nothing to assist the Defendant in her job search. He did not provide her with a letter of reference, and did not guide her to any particular job opportunity. Even the thousands of supposedly missed opportunities that he found on the internet were not sent to the Plaintiff until this litigation was commenced and her job search was over.

[14] In addition, counsel for the Plaintiff contends that the Defendant and his counsel actively impeded the Plaintiff’s job search. Apparently, in an effort to investigate the Plaintiff’s mitigation efforts, counsel for the Defendant had his law clerk call a number of the prospective employers to whom the Plaintiff had applied or made a job inquiry, asking whether they had ever heard of the Plaintiff and if her inquiry was real. Counsel for the Plaintiff contends that this alerted prospective employers to the fact that the Plaintiff was involved in litigation with her former employer, essentially turning her into persona non grata in the job market.

[15] This type of conduct undermines the Defendant’s argument that the Plaintiff did not act reasonably in attempting to mitigate her damages. My colleague Lederman J. described a similar situation in Drysdale v Panasonic Canada Inc. [2015] OJ No 6324, at para 22:

The defendant offered the plaintiff no assistance in searching out these job postings and therefore it does not lie readily in the defendant’s mouth to criticize the plaintiff afterwards for not pursuing these specific job opportunities. As stated by Taylor J in Maxwell v United Rentals of Canada Inc., 2015 ONSC 2580, at para 40 ‘…if an employer intends to argue the failure to mitigate on the part of the former employee, it would be well advised to present evidence of assistance that was offered to the terminated employee during his or her job search.’

[16] Added to all of this is the fact that the Plaintiff did manage to find a new job – not once but twice during the course of her 15-month search. From January through March 2017 she worked on a part time basis at another dentist office. Counsel for the Plaintiff concedes that her damages calculation must take into account her earnings during this 3-month period.

[17] In my view, the Plaintiff acted reasonably in attempting to mitigate her damages. Engaging in 4 to 5 job inquiries or applications a day strikes me as a rather grueling effort, and making over 80 separate job inquiries or applications seems to me to be as much as anyone could be asked to do. The Plaintiff limited her inquiries to a reasonable commuting distance and to roughly comparable jobs, which are limitations that anyone searching for new employment would impose on their own search.

[18] The one qualification that I would place on this conclusion is that during the 3-month period when the Plaintiff had temporary employment, she only applied to 2 potential jobs. This record – 2 job application during a 3-month period – does not amount to a reasonable effort to mitigate. Once the 3-month stint came to an end, the Plaintiff resumed her steady job search at a clip of 4 to 5 inquiries or applications per day. Accordingly, I would put the appropriate notice period at 12 months – i.e. the low end of the 12 to 15 month range. With reasonable mitigation efforts I can surmise that the Plaintiff would have found an adequate new job 3 months earlier than she did.

c) Summary judgment

[19] It is by now trite to observe that the Supreme Court of Canada has mandated motion courts to take a broad approach to granting summary judgment. A trial is not required if fair and just adjudication can be achieved by way of motion and a paper record: Hyrniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at paras 4-5.

[20] Generally, the adequacy of a terminated employee’s mitigation efforts and the quantification of pay in lieu of notice do not amount to genuine issues for trial: Adjemian v Brook Crompton North America, [2008] OJ No 2238, at paras 21-23 (SCJ). In his factum, counsel for the Plaintiff manages to collect some 27 cases in which Ontario courts have granted summary judgment in wrongful dismissal cases since 2015; and this is presented as a sample, not a complete list.

[21] Counsel for the Defendant asserts that there are issues of credibility at stake that prevent fair adjudication by way of summary judgment motion. With all due respect, I do not see any such issues of credibility here. As the Court of Appeal noted in Irving Ungerman Ltd v Galanis, [1991] OJ No 1378, “the proposition that an issue of credibility precludes the granting of summary judgment applies only when what is said to be an issue of credibility is a genuine issue of credibility.”

[22] Here, the supposed issues of “credibility” are no more than a disagreement between the respective parties’ counsel as to the conclusion to be drawn from facts that are not contested. The Defendant’s position boils down to an attack on the reasonableness of the Plaintiff’s mitigation efforts, and not an attack on her credibility or even a real disagreement over facts.

[23] There is no reason here that I cannot come to a just and fair determination of the issues on the basis of the record before me. If this matter were to go to a full trial, we would have the witnesses take the stand and do little more than reiterate what they have already stated in affidavit form. The Plaintiff might describe in more detail the content of her conversation with some of the prospective employers she approached, but this would be mostly superfluous information that does not really advance the analysis of the fundamental issues here. Accordingly, this case is an appropriate one for summary judgment.

d) Human rights claim

[24] The Statement of Claim contains an additional claim against the Defendant for workplace discrimination. The Plaintiff claims an extra $25,000 in damages for having been allegedly discriminated against by the Defendant on the basis of her ethnicity or religion.

[25] It was pointed out to counsel for the Plaintiff when he attended Civil Practice Court that the Court of Appeal’s decision in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 generally prevents parties from bringing successful motions for partial summary judgment. Since the Human Rights claim would not be the subject of the Plaintiff’s summary judgment motion, he would effectively be moving for a partial summary judgment by moving on the pay in lieu of notice issue alone.

[26] As a consequence, counsel for the Plaintiff seeks to amend his pleading to eliminate the Human Rights claim. Counsel for the Defendant has no objection to that amendment, except that he says there are some cost consequences to eliminating a cause of action that has already been defended on the merits. Those cost consequences will be addressed below with the balance of the costs considerations.

e) Damages

[27] The Plaintiff deserved 12 months’ pay in lieu of notice. As indicated, the Plaintiff earned $32,500 per year (or per 12-month period). From this must be subtracted the 8 weeks of salary that she received as termination pay. Two months (8 weeks) of salary at the Plaintiff’s annual rate comes to $5,416. From this must also be subtracted the $5,000 she earned doing temporary work.

[28] The total damages calculation is: $32,500 – 5,416 – 5,000 = $22,084. The Defendant shall pay the Plaintiff damages in the total amount of $22,084.00.

f) Costs

[29] Both sets of counsel have submitted cost outlines. Given their positions in this motion, each side’s submissions take on a different focus. Counsel for the Defendant has submitted costs for the motion alone in the amount of $9,710.33. That is what he would claim if he were successful in having the Plaintiff’s motion for summary judgment dismissed. Counsel for the Plaintiff has submitted costs for the entire action in the amount of $33,328.79 on a partial indemnity basis. That is what they would claim if successful in having the action dismissed in its entirety.

[30] Since she is the successful party, the Plaintiff deserves her costs. However, she was seeking 15 months’ pay in lieu of notice and only got 12, and so was not entirely successful. The judgment moves about one-fifth of the way to the position that the Defendant was taking. Accordingly, although I view Plaintiff’s counsel’s costs submissions as being quite moderate and reasonable, I would exercise my discretion under s. 131 of the Courts of Justice Act to reduce the costs sought by the Plaintiff by $6,666, so that the award is four-fifths of what Plaintiff’s counsel incurred, or $26,662.79. From this I would further subtract $2,500, which is what counsel for the Defendant estimates the defense of the abandoned Human Rights Claim is worth in costs.

[31] The Defendant shall pay the Plaintiff total costs of the action in the amount of $24,162.79, inclusive of disbursements and HST.

g) Disposition

[32] The Statement of Claim is hereby amended to the form of Fresh As Amended Statement of Claim found in the Plaintiff’s motion record.

[33] The Plaintiff is granted summary judgment in this action. The Defendant shall pay the Plaintiff damages in the amount of $22,084.00 and costs in the amount of $24,162.79.

Morgan J.

Date: December 13, 2017