Court File and Parties
COURT FILE NO.: 15-4257 DATE: 20181018 CORRECTED REASONS FOR JUDGMENT RELEASE: 20181101
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DIANNE MESSIER Plaintiff – and – LIFE LABS MEDICAL LABORATORY SERVICES Defendant
COUNSEL: I. N. McLean, for the Plaintiff Unrepresented
HEARD: September 9, 2018
CORRECTED reasons for judgment Correction: The amount in paragraph 18(g) and 19 were replaced by 38,904.98.
WILCOX, J
Introduction
[1] This is a motion for judgment under Rule 19.05 of the Rules of Civil Procedure. The plaintiff moved for judgment on the ground that the defendant failed to file a statement of defence and had been noted in default.
[2] The statement of claim was issued August 24, 2015 and served personally on September 8, 2015. The defendant was noted in default of a defence on August 29, 2016.
[3] Rule 19.05 is as follows:
19.05 (1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed. R.R.O. 1990, Reg. 194, r. 19.05 (1).
(2) A motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages. R.R.O. 1990, Reg. 194, r. 19.05 (2); O. Reg. 131/04, s. 11.
(3) On a motion for judgment under subrule (1), the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented. R.R.O. 1990, Reg. 194, r. 19.05 (3).
[4] Under Rule 19.06, a plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts on the claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.
[5] In the statement of claim the plaintiff sought:
a. Special damages of $100,000.00 b. General damages of $100,000.00 and c. Punitive damages of $100,000.00
together with interest and costs.
[6] The plaintiff alleged that she had been constructively dismissed from her long term employment with the defendant and that the dismissal was carried out in a high handed and offensive manner with disregard for her. Consequently, the plaintiff alleges that she suffered a loss of income and a loss of enjoyment of life together with stress, trauma and anxiety requiring ongoing medical attention.
Evidence
[7] The evidence at the motion consisted of the plaintiff’s affidavit of November 30, 2017 and the exhibits thereto.
[8] In summary, the plaintiff is now sixty years of age. She started working for the defendant in 1982. Initially, she was in charge of washing up in the laboratory, which she did for five years. After that, she was transferred into cytology [^1] at which position she remained for the rest of her time with the defendant.
[9] As part of her work as a lab assistant in the psychology department, she was involved in cytology and data entry. As corporate re-organisations occurred, she assumed more responsibility as the senior staff member remaining at the Sudbury office. Staff was reduced and given severance packages of two weeks for every year worked. In February, 2015, she was advised that if she was to continue with the defendant it would be on a completely re-organised employment position. She was given a letter dated February 11, 2015, identifying her new role as lab assistant. She contacted the defendant’s human resources department on May 20, 2015, to enquire as to her options and was given none. She believed that she could not do the work of the new position because she had limited education in French and less in English and would be fired in a short time. By February 19, 2016, she realized that her position was no longer tenable with the defendant and wrote a letter, not having obtained any appropriate legal advice, saying that she would resign from her position effective February 29, 2016, which resignation was accepted. At her age, she states, the prospect of finding equivalent employment is extremely limited, as she has spent her entire working life working for the defendant and its predecessor company and consequently has few qualifications for other employment.
[10] The plaintiff sought medical help. On February 26, 2015, her doctor completed her long term disability claim with a diagnosis of depression and anxiety and a “guarded prognosis”. She was on long term disability from March 31, 2015 to April 24, 2016. Her doctor’s notes, starting in February 2015, refer to stress, depression and not being able to do her job.
[11] She was referred to a psychiatrist who noted her increased stress levels due to a change of position at work. This doctor put her on medication, encouraged her to attend counselling, and had her remain off work until her condition could be re-evaluated. As of August 31, 2016, he was still saying that she was not able to go back to work for the defendant.
Re Constructive Dismissal
[12] The definition of constructive dismissal was stated in Russo v. Kerr [^2] at para. 36 to be “a fundamental alteration in the terms and condition of employment”. The test for constructive dismissal was set out in Garcia v. 1162540 Ontario Inc. [^3] at para. 12 as, “whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment agreement were being changed”. [^4]
[13] When there is constructive dismissal, one of the options available to the employee is to reject the change and sue for damages, as was done here. [^5] The employee would be entitled to damages for the period of reasonable notice. [^6] “(T)he reasonableness of the notice must be decided with reference with each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of the similar employment, having regard to the experience, training and qualifications of the servant”. [^7]
[14] As previously noted, the statement of claim alleged that the plaintiff was constructively dismissed, which was not denied. The evidence supports a finding that the defendant employer unilaterally fundamentally altered the terms of the employment relationship, creating a new role for the plaintiff. This amounts to constructive dismissal.
[15] The plaintiff sought from the defendant other options, but was given none. The plaintiff therefore rejected the change, which rejection was expressed in terms of her resignation, and has sued for damages. I find that resignation was involuntary in the circumstances and in light of the plaintiff’s inquiry of the defendant’s human resources department and does not detract from the fact that there was constructive dismissal. [^8]
Re Damages
[16] At the motion, the plaintiff sought damages in the quantum of her lost income.
[17] In Garcia v. 1162540 Ontario Inc. [^9], two paragraphs are of assistance on point:
[29] For ease of reference, I will restate the relevant statement of Laskin C.J. in Michaels v. Red Deer College, [1976] 2 S.C.R. 324, at para. 11, referred to by the Deputy Judge in his reasons:
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. From this passage, the following is clear. First, the plaintiff must demonstrate that he suffered damages in the form of a loss of income. Second, if the plaintiff has established damages, the defendant has the onus of demonstrating a failure to mitigate. Third, if the defendant asserts a mitigation defence, the plaintiff has no legal onus to demonstrate mitigation but, in most circumstances, self-interest would dictate that a plaintiff adduce such evidence.
[31] The level of proof required to establish lost income is not onerous. It is not the same as the proof required to establish mitigation. It is simply evidence that the plaintiff was not employed, or not employed at the same level of salary or wages as he was prior to the wrongful termination of his employment.
[18] The plaintiff calculated her damages as follows:
a. In 2014, her T4 from the defendant showed employment income of $44,503.37, or $855.83 per week. b. She was employed by the defendant for 32 years. c. Two weeks of pay per year of employment in lieu of notice amounts to $54,773.37. d. She subtracted the employment insurance benefits that she had received, in the amount of $17,721.00. e. This left a total loss of income of $37,052.37. f. Interest at 2% for 2.5 years (i.e. 5%) was $1,852.61. g. Therefore, the total damages claimed under this head amounted to $38,904.98.
[19] In view of the Bardal factors I do not take issue with this calculation. Also, the plaintiff deposed that other staff who were let go by the defendant received two weeks for each year worked. Therefore, I award the plaintiff damages payable by the defendant for her constructive dismissal in the amount of $38,904.98.
[20] The plaintiff also claimed as damages the monthly amounts that she withdrew from her RRSP commencing in May, 2016 to cover living expenses due to her loss of regular income. I am not persuaded that this is not, in effect, double dipping, and would not award further damages to cover this.
[21] The plaintiff at the motion did not pursue the claim for punitive damages. She did, however, pursue general damages alleging that the defendant was “unduly insensitive” towards her, which is an example of bad faith in the context of the termination of employment which would attract damages. [^10]
[22] The defendant’s letter of February 11, 2015, to the plaintiff offers her a new role with the defendant’s organization, but continuing to be full time in the same location, at the same salary and with limited changes to her other employment conditions. Despite the plaintiff’s negative reaction to the proposed change of role, I am not persuaded that the way it was handled by the defendant was unduly insensitive. No damages are awarded on this ground.
Costs
[23] Costs are payable on a partial indemnity scale. The plaintiff’s counsel filed Bills of Costs at both substantial indemnity and partial indemnity scales. Partial indemnity is generally accepted as being 60% of the substantial indemnity rate. The partial indemnity bill has been calculated using about 78%. I have re-calculated it at 60% and award partial indemnity costs of $9,000.00 payable by the defendant to the plaintiff forthwith.
J. A. S. Wilcox Released: October 18, 2018 Corrected Reasons for Judgment Released: November 1, 2018