Court File and Parties

COURT FILE NO.: CV-17-576761 DATE: 20181116 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: BOPHA KOCH Plaintiff – and – TORONTO TRANSIT COMMISSION Defendant

COUNSEL: S. Margot Blight & Adam M. Pennell, for the Plaintiff Giuseppe Agostino, for the Defendant

HEARD: July 20, 2018

BEFORE: Hood J.

Reasons for Decision

Overview

[1] The plaintiff was hired by the defendant, Toronto Transit Commission (“TTC”), on February 19, 2013 as a Group Station Manager. Her contract had no termination clause. She was dismissed without cause on June 24, 2015. She was employed for approximately two years and four months. She was 44 years old at the time. Unbeknownst to the TTC, at the time of termination, the plaintiff was pregnant. She was offered a severance package which she ultimately refused to accept.

[2] She commenced a claim for wrongful dismissal on June 8, 2017. The TTC defended the claim. She now moves for summary judgment claiming damages of $169,799 based upon a 12 month notice period, loss of benefits, the cost of an annual TTC employee transit pass plus payment for the TTC pregnancy leave top-up and benefit continuation, or a four month extension of her notice period, which works out to approximately the same amount as the pregnancy leave top-up and benefit continuation.

[3] In addition she claims that she is owed accrued but unpaid vacation wages of 126 hours and 7.3 hours of lieu time, which total $8,519. Because the TTC has refused to pay this amount, in alleged violation of its own termination policies and in violation of its obligations under the ESA, she claims to be entitled to aggravated and moral damages in the amount of $40,000 on top of the damages of $169,799. In her claim she also seeks aggravated and moral damages for a breach of confidence regarding her pregnancy. She claims the TTC let this information become public knowledge and a matter of gossip rather than being kept confidential as promised.

[4] The plaintiff in her claim alleges that she was contacted by an international executive search company and encouraged to apply for the TTC job. She also pleads that her recruitment away from her former secure employment is a factor to consider in arriving at an appropriate notice period. However, during argument her counsel advised that she was no longer claiming inducement as a factor to consider in determining an appropriate notice and that this was being abandoned.

[5] The TTC argues that the plaintiff is entitled to a 4 month notice period for salary and benefits, is not entitled to the value of the transit pass, is not entitled to the TTC pregnancy leave top-up benefit or any additional notice due to her pregnancy, is not owed unpaid wages for vacation and is not entitled to aggravated or moral damages. The TTC acknowledges that the plaintiff is owed $380 representing 7.5 hours of lieu time but argues that in fact it has overpaid the plaintiff approximately $3,203 in vacation pay, so this amount of $380 is not owed.

[6] The TTC asks that the motion for summary judgment be dismissed.

[7] During the course of submissions before me, the TTC argued that summary judgment was inappropriate where the plaintiff was seeking moral and aggravated damages in the claim for breach of confidence regarding the plaintiff’s pregnancy as well as for non-payment of the vacation pay. The plaintiff was seeking moral and aggravated damages for the non-payment of the vacation pay on this motion, and was leaving the damages for breach of confidence to be determined at trial. The TTC argued that the plaintiff should not be entitled to proceed on the summary judgment motion for damages arising from the non-payment of vacation pay, leaving damages for breach of confidence to be determined at trial. In response to this argument the plaintiff advised that she was prepared to abandon any claim for moral and aggravated damages in order for the summary judgment motion to proceed.

[8] Without this abandonment of claim for moral and aggravated damages for both the non-payment of vacation pay and for breach of confidence proceeding by way of summary judgment would have been inappropriate. It would have been unfair to split the plaintiff’s case in two and would not have resulted in any substantial saving of time and resources as the same parties would be at trial as on the motion and many of the same witnesses would have been required to give evidence at trial. Also, the conduct complained of, while alleged to be distinct, was to some extent intertwined, as all of it arose out of the plaintiff’s termination, and should be looked at cumulatively. With this claim for damages being abandoned the motion could at least be considered.

Decision

[9] The plaintiff’s motion is dismissed. No other orders are made.

Summary Judgment Principles

[10] Summary judgment is available where there is no genuine issue requiring a trial: Hryniak v. Mauldin, 2014 SCC 7, at para. 34.

[11] The court will find that there is no genuine issue requiring a trial when it is able to reach a fair and just determination on the merits. The motions judge should determine if there is a genuine issue requiring a trial based only on the evidence before them, without using the fact-finding powers in Rule 20.04(2.1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194: Hryniak at paras. 49 and 66.

[12] The standard for a “fair and just determination” is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that they can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. The evidence need not be equivalent to that at trial but must be such that the judge is confident that they can fairly resolve the dispute: Hryniak, at paras. 50 and 57.

[13] I am not satisfied that I am in a position, based on the record before me, to find the necessary facts so as to resolve this dispute.

Analysis

[14] The parties are in agreement that, in determining the length of notice, the court is to consider the Bardal factors applicable to the particulars of each case – the character of the employment, the length of service of the employee, the age of the employee and the availability of similar employment having regard to the experience, training and qualifications of the employee: Bardal v. The Globe and Mail Ltd., [1960] O.W.N. 253, at para. 21.

[15] There is no disagreement over length of service or age.

[16] The parties disagree over the plaintiff’s character of employment. While I recognize that the assessment of the length of notice is arguably more of an art than a science, this disagreement is of serious concern as not only does this factor come into play as being one of the specific Bardal factors, it is relevant to the plaintiff’s mitigation efforts and comes into play in considering another of the specific Bardal factors: the availability of similar employment.

[17] The plaintiff argues that she was in a senior or managerial position with a high salary denoting her experience and responsibility. She provided case law for those of similar age and length of service in senior positions where notice periods of 9 to 12 months were ordered. She argued that in her situation 12 months was appropriate.

[18] The TTC argues that she was in a mid-level managerial position. It provided case law for those of similar age and length of service in mid-level management positions where notice periods of 3 to 6 months were ordered. The TTC argued that in her situation 4 months was appropriate.

[19] The difference between the parties is sizeable and it is based upon the character of the plaintiff’s employment. While I expect that one could find cases that would bring the notice periods for senior versus mid-level managers closer together the parties have not done so and have a 300% difference between what they say is appropriate based upon the character of the plaintiff’s employment.

[20] The TTC also argues that the plaintiff’s mitigation efforts were unreasonable and she failed to mitigate her damages in that, among other things, she focused on senior level managerial positions rather than similar employment as a mid-level manager. This argument depends upon the character of her employment.

[21] This mitigation argument also overlaps with the Bardal factor of the availability of similar employment. What is similar depends upon whether she was a senior or mid-level manager.

[22] Though decided prior to Hryniak, I agree with the decision of Justice Molloy in Cockshutt v. Computer Facility Services Inc., 2010 ONSC 1789 that the factual dispute on the character of her employment is a major obstacle to the availability of summary judgment.

[23] The material filed does not assist me in coming to a factual determination of this issue. This is an issue that will require a trial to determine. While the summary judgment procedure was designed to be expeditious and affordable the process must also ensure that the dispute is resolved fairly and justly.

[24] Having a trial will also allow the plaintiff to proceed with her claim for aggravated and moral damages for both the breach of confidence and the unpaid vacation pay. Moreover, a trial will also allow the parties to forward their respective arguments on how the plaintiff’s pregnancy should be dealt with on a complete record and complete factual background. The parties have advised that there is no case law on whether pregnancy should be viewed as an interruption to the notice period, as argued by the plaintiff, rather than as a Bardal factor as argued by the TTC, which does have some support in the case law. If this is to be considered, in my view it is preferable that this argument proceed after a trial. This, I should make clear, is not a basis for my finding that summary judgment is inappropriate. I have done so on the basis of the character of employment alone, however, in doing so this will be one of the byproducts of sending the matter to trial.

[25] Further, I do not believe it to be appropriate to conduct a mini trial or to seize myself. I see no significant saving in time or in expense in doing so. I am currently, based upon the material filed, in no different a position than a trial judge would be. There are no economies to be achieved and nothing to carry forward. Nor are there any directions to be made or terms to be imposed. I have no information as to the status of the action and what steps have been completed.

[26] As a final point, there is nothing in my decision dismissing the plaintiff’s summary judgment motion that should be seen as being binding on the parties at trial, in law or in fact. My determination is simply that there is a genuine issue requiring a trial.

[27] Presumptively the defendant is entitled to costs of the motion. The parties provided their respective costs outlines, although unsigned, on the conclusion of argument. If the parties are unable to agree upon the issue of costs, the defendant is to provide submissions consisting of no more than two double-spaced pages along with any offers or case law to my attention to Judges’ Administration, Room 170, 361 University Avenue, on or before November 30, 2018. The plaintiff is to provide her submissions subject to the same directions on or before December 14, 2018. There are to be no reply submissions.

HOOD J. Released: November 16, 2018