COURT FILE NO.: CV-16-566364
DATE: 2018/11/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gary West
Plaintiff
– and –
Mex Precision Wire Corporation
Defendant
Counsel:
Jeffrey Pariag for the Plaintiff
HEARD: Orally and in writing
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] In this wrongful dismissal action, Gary West brings this motion for a default judgment against Mex Precision Wire Corporation, his former employee.
[2] In his Notice of Motion, Mr. West seeks a default judgment: (a) for wrongful dismissal damages of $95,000 less working notice and mitigation; (b) $20,000 for intentional or negligent infliction of mental distress; and (c) pre-judgment interest and post-judgment pursuant to the Courts of Justice Act.[^1] In his Statement of Claim, Mr. West capped his claim at $100,000 and thus this motion is for a default judgment of $100,000 plus costs.
B. Procedural Background
[3] On December 20, 2016, Mr. West commenced this action. Mex Precision Wire Corporation did not defend.
[4] On February 7, 2017, Mex Precision Wire Corporation was noted in default.
[5] On February 12, 2018, Mr. West moved for a default judgment, and Justice Allen ordered that Mr. West affix a copy of the Statement of Claim on Mex Precision Wire Corporation’s premises and ordered that default judgment would be granted if it did not file a Statement of Defence or Notice of Intent to Defend within 20 days of service.
[6] On February 12, 2018, Mex Precision Wire Corporation was served with a copy of the Statement of Claim and Justice Allen’s Order. It did not deliver a Statement of Defence or Notice of Intent to Defend within 20 days of service.
[7] On August 8, 2018, Mr. West moved for a default judgment but I adjourned the motion to permit Mr. West to deliver additional evidence on the issue of whether a limitation of damages provision in his employment contract was enforceable and to provide medical evidence with respect to his claim for intentional or negligent infliction of mental distress.
[8] On October 31, 2018, Mr. West delivered a supplementary affidavit providing additional evidence with respect to his wrongful dismissal claims.
C. Facts
[9] After frequent and persistent efforts, Mr. West was induced to leave his secure 10-year employment with Access Retail Group Inc. to come to work for Mex Precision Wire Corporation for an annual salary of $95,000 ($7,917 per month).
[10] Mr. West began work in November 2015, and he was terminated 12 months later with four weeks working notice. At the time of his termination, he was 59-years old.
[11] Mr. West never did sign a formal employment contract. There were ongoing negotiations that were never resolved.
[12] Mr. West was shown a formal contract. The contract had an exculpatory provision limiting his entitlements upon termination to the minimums prescribed by the Canada Labour Code. This formal contract was discussed after Mr. West had begun employment, and he never agreed to its terms. Ultimately, there was just an oral employment contract for an annual salary of $95,000 per year for the general manager’s position.
[13] During the time of his employment, although he was a hard-working and dedicated employee Mr. West alleges that he was intentionally and maliciously harassed and publicly denigrated and humiliated by his supervisor and by several subordinates who were insubordinate. Mr. West deposed that he suffered emotional distress as a consequence of the mistreatment.
[14] The medical evidence that Mr. West provided, however, does not substantiate that Mr. West suffered emotionally because of work-related stress. The medical evidence, which was comprised of the clinical notes of his family doctors, reveals that Mr. West did not complain about work-related stress until after his dismissal. In any event, Mr. West, who suffers from a variety of ailments, was only prescribed sleeping pills for the stress arising from this litigation.
[15] After his dismissal, despite diligent efforts to find employment, Mr. West was unemployed until July 31, 2017 at which time he regained employment, but at an annual salary of $60,000.
D. Discussion
[16] The elements of a claim of intentional infliction of mental suffering are: (1) the defendant’s actions are flagrant and outrageous; (2) the defendant intends to harm the plaintiff or the defendant knows that his or her conduct will cause harm; and, (3) the plaintiff suffers a visible and provable illness.[^2]
[17] As a general rule, additional damages are not awarded to compensate the employee for the disappointment, embarrassment, or other psychological effects flowing from the loss of employment.[^3] However, if an employee can prove bad faith conduct by the employer in the manner of the dismissal that caused mental distress that was in the contemplation of the parties, then the employee may be entitled to aggravated or punitive damages. These damages are calculated according to the same principles and in the same way as in cases dealing with moral damages and not by extending the reasonable notice period. Damages resulting from the manner of dismissal are available, if during the course of the dismissal, the employer’s conduct is unfair or is in bad faith by being, for example, untruthful, misleading, or unduly insensitive such as attacking an employee’s reputation, misrepresenting the reasons for the dismissal or depriving the employee of an accruing right.[^4]
[18] In the immediate case, Mr. West has not proven a claim of intentional infliction of mental suffering. However, he has he proven a claim for aggravated damages associated with the manner of his dismissal. I would assess those damages at $10,000.
[19] An employee who is dismissed without reasonable advance notice of termination is entitled to damages for breach of contract based on the employment income the employee would have earned during the reasonable notice period, less any amounts received in mitigation of the loss.[^5]
[20] There is no catalogue as to what is reasonable notice and the reasonableness of notice must be determined by reference to the facts of each particular case.[^6] In determining the length of notice, the court should consider, among other possible factors: (1) the character of employment; (2) the length of service; (3) the age of the employee; and (4) the availability of similar employment having regard to the experience, training, and qualifications of the employee.[^7] The factors are not exhaustive, and what is a reasonable notice period will depend on the circumstances of the particular case.[^8]
[21] The weight to be given each factor will vary according to the circumstances of each case, and the judge in a wrongful dismissal case is required to exercise judgment in determining what factors are of particular importance. In determining the reasonable notice period, the court should not apply as a starting point any rule of thumb attribution so many weeks or months of notice per year of service, because such an approach privileges length of service above all relevant factors in determining notice, and each case must be considered having regard to its particular facts.[^9]
[22] A relevant factor in determining the reasonable notice period is whether and the extent to which the dismissed employee was induced to leave his previous secure employment.[^10]
[23] Generally speaking, a longer notice period will be justified for older long-term employees, who may be at a competitive disadvantage in securing new employment because of their age.[^11]
[24] In the immediate case, Mr. West received one month’s notice, but, in my opinion, the reasonable notice period ought to have been twelve months, less amounts paid and less mitigation. Thus, Mr. West is entitled to a wrongful dismissal award of $79,300.
[25] Therefore, Mr. West is entitled to an award of $79,300 for wrongful dismissal plus pre-judgment interest of $2,985.16 (calculated at 2% per annum from December 20, 2016 to November 6, 2018, the date of judgment, (687 days)) plus $10,000 for aggravated damages for a total judgment of $92,285.16 plus costs on a partial indemnity basis to be assessed.
[26] Mr. West may make his costs submissions within 10 days of the release of these Reasons for Decision.
[27] Judgment accordingly.
Perell, J.
Released: November 6, 2018
COURT FILE NO.: CV-16-566364
DATE: 2018/11/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gary West
Plaintiff
– and –
Mex Precision Wire Corporation
Defendant
REASONS FOR DECISION
PERELL J.
Released: November 6, 2018
[^1]: , R.S.O. 1990, c. 43. [^2]: Piresferreira v. Ayote 2010 ONCA 384; Correia v. Canac Kitchens, a division of Kohler Ltd., 2008 ONCA 506; Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 45005 (ON CA), 60 O.R. (3d) 474 (C.A). [^3]: Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3; Peso Silver Mines Ltd. (N.P.L.) v. Cropper, 1966 75 (SCC), [1966] S.C.R. 673 at p. 684; Addis v. Gramophone Co., [1909] A.C. 488 (H.L.). [^4]: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362; Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701. [^5]: Sylvester v. British Columbia, 1997 353 (SCC), [1997] 2 S.C.R. 315. [^6]: Bardal v. Globe & Mail, 1990 6677 (ON SC), [1990] O.J. No. 149 (H.C.J.). [^7]: Machinter v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R. 986; Cronk v. Canadian General Insurance Co. (1995), 1995 814 (ON CA), 25 O.R. (3d) 505 (C.A.); Bardal v. Globe & Mail, 1990 6677 (ON SC), [1990] O.J. No. 149 (H.C.J.). [^8]: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362; Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701; Minott v. O’Shanter Development Co. (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321 (C.A.); Duynstee v. Sobeys Inc., 2013 ONSC 2050. [^9]: Beatty v. Best Theratronics Ltd., 2015 ONCA 247; Love v. Acuity Investment Management Inc., 2011 ONCA 130; Minott v. O’Shanter Development Co., (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321 (C.A.). [^10]: Rodgers v. CEVA Freight Canada Corp., 2014 ONSC 6583; Firatli v. Kohler Ltd. (c.o.b. Canac Kitchens), [2008] O.J. No. 2763 (S.C.J.); Egan v. Alcatel Canada Inc., 2006 108 (ON CA), [2006] O.J. No. 34 (C.A.), leave to appeal to SCC ref’d [2006] S.C.C.A. No. 82; Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701. [^11]: McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229.