Court File and Parties

COURT FILE NO.: CV-18-75231 DATE: 2019/02/14 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Bozena Peterko, Plaintiff / Moving Party AND Centric Health Corporation, Defendant / Responding Party

BEFORE: Justice R. Laliberte

COUNSEL: Thomas G. Conway and Alyssa Edwards, Counsel for the Plaintiff / Moving Party Stefan Kimpton, Counsel for the Defendant / Responding Party

HEARD: January 31, 2019

REASONS FOR JUDGMENT

Introduction

[1] The Plaintiff Bozena Peterko (“BP”) has brought a summary judgment motion in the course of an action for damages against her former employer Centric Health Corporation (“CHC”). All agree that her dismissal was without cause. The sole issue revolves around the appropriate reasonable notice of intention to terminate her employment that BP was entitled to and the damages, if any, payable in accordance with this reasonable notice.

[2] The parties agree to have all of the claim determined by a summary judgment. The Court is satisfied that it is appropriate to grant summary judgment.

Facts

[3] BP relies on her sworn affidavits dated August 31, 2018 and October 23, 2018. She was cross-examined on these on October 25, 2018 and a transcript was provided to the Court.

[4] CHC has filed the following affidavits all of which were sworn on October 4, 2018:

• Isabel Doel: Manager, payroll and benefits, HR at CHC
• Jason MacEwen: pharmacy manager at Classic Care Pharmacy, a division of CHC
• Ashley Boag: human resources business partner at Classic Care Pharmacy, a division of CHC.

[5] Much of the evidence in this matter is not in dispute. The main argument relates to BP’s duties and responsibilities with CHC. The Court will briefly summarize the relevant evidence.

[6] BP is a 53-year old woman residing in Ottawa. She was raised in Poland where she received a Bachelor and Master of Pharmacy. She was a licensed pharmacist in Poland.

[7] She immigrated to Canada in 1989 and obtained her pharmacist’s license from the Ontario College of Pharmacists in February 2000.

[8] CHC provides pharmaceutical dispensing and clinical consulting services to long term homes and retirement communities across Ontario. CHC acquired Classic Care Pharmacy Corporation (CCPC) in 2011.

[9] The records show that BP initially worked for CCPC from February 19, 2001 to July 7, 2002 as a pharmacist. She returned to work for CCPC on January 6, 2003 until her termination effective November 15, 2017.

[10] The November 15, 2017 termination letter confirms that her termination was as a result of changes to the employer’s organizational structure. Therefore, there was no just cause to terminate her employment.

[11] BP explains that she resigned from her position with CCPC in July 2002 by reason of the high workload and unpaid overtime. She commenced working as a pharmacist at Costco in October 2002.

[12] Her evidence is that she returned to work for CCPC on January 6, 2003. She states that a former co-worker at CCPC had called her and was reaching out on behalf of the new manager who was interested in hiring her back. She immediately contacted and met with the new manager to discuss the details of the position. She was shortly thereafter contacted by the founder and CEO of CCPC with who she worked out the details of her re-hiring.

[13] BP was cross-examined on this subject matter on October 25, 2018. She explained how she was called by a fellow worker who told her that she was missed and there was a new management. She admits having called the new manager who stated that she was so happy that she had called her back and hoped she would return. She agrees that she wanted to go back as things were promising and it was Monday to Friday day shifts.

[14] As already noted, there is a factual dispute as to BP’s duties and responsibilities while working at CHC.

[15] Jason MacEwen is a pharmacy manager with CHC. He was responsible for the position held by BP. In his October 4, 2018 affidavit, he describes her position as follows:

• she occupied the position of dispensary pharmacist;
• her position was non-managerial in nature; she did not have any direct reports;
• her position was similar to any other professional pharmacist position;
• while there are some distinctions in the day-to-day activities between a pharmacist working in a retail environment and a pharmacist operating in a more specialized environment such as CHC, there is no professional distinction; the core professional competencies are the same for both;
• having worked in both environments, he believes that both positions have several similarities; he identifies the following similarities:
  • doing medication reconciliation;
  • packaging medication being dispensed and reporting errors to physicians;
  • using specialized software designed for the pharmacy industry;
  • transfer of prescriptions to and from the pharmacies;
  • counselling patients, their families or their primary care provider on new and refilled medication orders;
  • working with customers to find ways to make patient care more affordable.

[16] BP provides a somewhat different picture of her duties and responsibilities when compared to a retail pharmacist. She notes the following in her affidavits:

• upon her return in January 2003, she worked as a pharmacist and was managing a team of 2 technicians or assistants; she had been assigned 10 homes;
• from 2005 to 2007, she performed significant clinical work;
• her position involved a number of skills specific to long-term care, including:
  • reviewing and analyzing each patient’s medications every 3 months to ensure that there would be no adverse drug interactions or duplication;
  • performing medication reconciliations upon any patient’s hospital discharge to identify discrepancies and follow up with the patient’s doctor regarding any issues;
  • using computer software employed specifically by long-term care facilities to manage patients’ treatments and medication administration records and working with doctors and nurses in this regard;
  • involved in “deprescribing” which is the process of intentionally stopping a medication or reducing its dose to improve the patient’s health or reduce the risk of adverse side effects.
• she states that she played a much more active role in the care of each patient.

[17] In her October 25, 2018 cross-examination, B.P. agrees with the following:

• she was a dispensary pharmacist and as such she couldn’t hire, dismiss, discipline or change job descriptions of employees;
• she reported to the assistant pharmacy manager and the pharmacy manager as did the others who worked with her on her team.

[18] B.P. has provided evidence in regards to her physical condition. She explains that she has been diagnosed with multilateral degenerative disc disease and facet arthropathy. She now suffers from severe pain to her feet, knees and back such that she cannot work in a position that requires her to stand for long periods of time. This medical condition is confirmed by letters signed by her family physician and physiotherapists.

[19] She states that her physical limitations could easily be accommodated while working for CHC as she spent most of her working hours seated and employees were provided with adjustable chairs and pressure-relieving mats.

[20] In his October 4, 2018 affidavit, pharmacy manager with CHC Jason MacEwen notes that B.P. never made any request for accommodation based on any physical limitation while working at CHC.

[21] In both of her affidavits, B.P. sets out the efforts made to find new employment since her termination in November 2017. These can be summarized as follows:

• from November 2017 to October 2018, she applied for over 50 positions, many of which were for retail pharmacist positions;
• she signed up for several job search websites, registered to receive job alerts;
• she has reached out to her professional network to learn of any unadvertised positions;
• she has completed various courses and training to increase her employability; she has purchased additional online courses to update her skill set.

[22] Copies of the job postings she has applied to are attached to her affidavits. She has thus far been unable to find work.

[23] In her October 4, 2018 affidavit, Ashley Boag, a human resources business partner at Classic Care Pharmacy, a division of CHC, sets out a list of 9 job postings in the Ottawa region for pharmacists she found on October 3, 2018 while searching a job search website.

[24] There is no dispute that CHC paid BP the following amounts following her termination pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41:

• Termination pay: $ 20,856.48
• Severance pay: $ 36,498.70 Total: $ 57,355.18

[25] Furthermore, there is no dispute that CHC maintained BP’s health and dental benefits for a 12 month period following her termination.

[26] At the time of her termination, the total premium was $518.06 per month. CHC contributed $293.26 monthly and the remainder of $224.80 was deducted from BP’s pay.

[27] The information provided by BP shows that CHC paid a total of $4,421.86 in contribution towards her continued employment benefits:

• From November 21, 2017 to April 20, 2018: $ 1,305.60
• From April 21, 2018 to November 15, 2018: $ 3,116.26

[28] Finally, the parties agree that BP’s annual salary at the time of termination was $135,350 ($11,250 per month).

Position of the parties

Plaintiff B.P.

[29] The Plaintiff’s position is that she is entitled to the following relief:

• damages for wrongful dismissal in the amount of $259,708.33 equivalent to 23 months’ salary in lieu of reasonable notice of termination;
• damages for loss of health, dental and other benefits ($2,323.12) and other ancillary employment benefits ($1,200.00 for payment of professional fees) during the entire notice period, in the amount of $3,523.12;
• pre-judgment and post-judgment interest in accordance with the Courts of Justice Act.

[30] Counsel raises the following points in support of her position:

• her length of service should be calculated beginning from her first employment with Classic Care in February 2001 since she was actively induced to return to work there by the new manager and the founder and CEO; she therefore worked for CHC for a period of 17 years;
• a 23 months notice period is appropriate for the following reasons:
  • she was 53 years-old at the time of termination;
  • she was employed by CHC for nearly 17 years;
  • she occupied a managerial position at CHC;
  • she developed a highly specialized skill set because of work at CHC;
  • she has physical limitations which reduces her ability to find comparable employment;
  • as of yet, she has been unable to find comparable alternate employment despite significance efforts;
• she is also entitled to damages for benefits that would have been afforded to her during the 23 months reasonable notice period; the total premium for this period amounts to $6,744.93 (23 months x $293.26); CHC did maintain some reduced benefits and paid $4,421.86 up to November 15, 2018; the difference to be paid is $2,323.12;
• she has mitigated her damages as much as possible given that she has applied to over 50 positions since her termination; she has also completed courses and training in an attempt to find comparable alternate employment;
• the following cases are relied upon as comparables to the present matter:
  • Singer v. Nordstrong Equipment Ltd. 2018 ONCA 364, [2018] O.J. no 1988
  • Day v. JCB Excavators Ltd. [2011] O.J. no 5338
  • Trudeau-Linley v. Plummer Memorial Public Hospital [1993] O.J. no 2272
• In regards to the question of discount for contingency since she is claiming a reasonable notice period in excess of the time which has passed since her termination, her position is that the Court should opt to apply the “trust and accounting” approach and require her to account to CHC for future income if any earned during the notice period

Defendant CHC

[31] CHC maintains that the length of reasonable notice claimed by BP is excessive and exaggerated, as are the damages claimed. Given all the relevant factors, including her age, years of service and position held, reasonable notice should be fixed, at most, at approximately one month per year of service.

[32] The following points are raised in support of its position:

• the previous employment from 2001 to 2002 should not be counted to determine reasonable notice since BP had resigned and she had not been induced by CHC to return and leave a secure position;
• her position was non-managerial in nature and she reported to a pharmacy manager and an assistant pharmacy manager; she did not occupy a senior position; she admitted in cross-examination that her position contained none of the hallmarks of a managerial position; she occupied a professional position;
• her position was similar to any other professional pharmacist position; as such, there is no reason to increase the length of notice based on any alleged specialized skills;
• since there are several comparable pharmacist positions available in the present job market, BP should be able to find other employment in a reasonably short period of time;
• BP’s alleged disability is not a significant consideration:
  • she never made any request for accommodation while working at CHC;
  • she is protected from discrimination based on disability under the Ontario Human Rights Code;
  • all she needs is a chair and a stress mat;
  • she has never raised the issue with a prospective employer;
• the Court is reminded that BP was provided her entitlements under the Employment Standards Act for termination pay in the amount of $20,856.48 and severance pay of $36,498.70 for a total of $57,355.18; these payments must be deducted from any damages;
• it is also noted that CHC maintained BP’s health and dental benefits for a 12 month period; in fact, CHC paid her premiums to maintain benefits between April to November 2018; therefore, no additional compensation should be provided for her loss of benefits;
• damages for reimbursement of professional fees should be limited to approximately $1,2000;
• since BP is claiming “future damages”, a discount should be applied to factor the possibility of future earnings;
• the reasonable notice period should be reduced as a result of her failure to mitigate her damages by finding alternative employment following her termination;
• the following cases are presented as comparables:
  • Tomala v. Wal-Mart Canada [2005] O.J. no 378;
  • El-Hawary v. 1202827 Ontario Inc. [2014] O.J. no 4270;
  • Hoy v. Fag Bearings Ltd. [2007] O.J. no 5143;
  • Hawkes v. Levelton Holdings Ltd. [2012] B.C.J. no 1708

The Law

[33] In deciding this matter, the Court is guided by the following principles:

• at common law, an employee hired for an indefinite period can be dismissed without cause, but only if the employer gives the employee reasonable notice of termination;
  • Machtinger v. Hoj Industries Ltd., [1992] 1 S.C.R. 986
  • Wood v. Fred Deeley 2017 ONCA 158, [2017] O.J. no 899
• at its foundation, reasonable notice is the period of time it should reasonably take the terminated employee to find comparable employment;
  • Lin v. Ontario Teachers’ Pension Plan Board 2016 ONCA 619, [2016] O.J. no 4221
• damages for dismissal without reasonable notice are designed to compensate employees for the losses incurred during the period of reasonable notice – the amount of wages and benefits that they would have earned had they been permitted to serve out the notice period;
  • Arnone v. Best Theratronics Ltd. 2015 ONCA 63, [2015] O.J. no 461
• there can be no catalogue laid down as to what is reasonable notice in particular classes of cases; the reasonableness of the notice must be decided with reference to each particular case, having regard to:
  • the character of the employment;
  • the length of service;
  • the age of the employee;
  • availability of similar employment having regard to the employee’s experience, training and qualifications
  • Bardal v. Globe & Mail Ltd., [1960] O.J. no 149
• the importance to be given to the character of the employment is a factor of declining relative importance; it is a criterion that if often of limited value in the modern context;
  • Di Tomaso v. Crown Metal Packaging Canada LP 2011 ONCA 469, [2011] O.J. no 2900
  • Patterson v. IBM Canada Ltd. [2017] O.J. no 888
• an employee is bound in law to mitigate his or her damages as best as he or she is able; the employee must make reasonable efforts to mitigate the damages by seeking an alternative source of income;
  • Bowes v. Goss Power Products Ltd. 2012 ONCA 425, [2012] O.J. no 2811
• the onus is on the employer to prove that the employee failed to take reasonable steps to find a comparable position reasonably adapted to his or her abilities;
  • Link v. Venture Stell Inc. 2010 ONCA 144, [2010] O.J. no 779
  • Beatty v. Best Theratronics Ltd. [2015] O.J. no 1827
• when considering how to award damages before the expiry of the period of reasonable notice, courts in Ontario have applied three strategies:
  • the trust approach: the employee must account for any mitigation earnings and a procedure is designed for potential for a return to Court in the event of disputes;
  • the partial summary judgment approach: the parties return at the end of the notice period to determine the adequacy and success of the employee’s mitigation efforts;
  • the contingency approach: the employee’s damages are reduced by a contingency for re-employment
  • Cormier v. 1772887 Ontario Ltd. [2019] O.J. no 325
• termination and severance pay paid by the employer under the Employment Standards Act are to be deducted from awards of damages for wrongful dismissal;
  • Stevens v. Globe & Mail, [1996] O.J. no 1614

Discussion

[34] Having considered all of the circumstances and the relevant principles, the Court finds that the reasonable notice of termination in this matter is 18 months. It is seen as the period of time it should reasonably take BP to find comparable employment.

[35] Not having been provided with this 18 months reasonable notice, she is entitled to be compensated for the losses incurred during this period.

[36] The Court also finds that the evidentiary record produced in this summary judgment motion establishes that BP has made reasonable efforts to mitigate her damages by seeking comparable employment reasonably adapted to her abilities. CHC has not met its burden of proving that BP failed to take such reasonable steps.

[37] These findings are based on the following considerations:

BP length of employment with CHC

[38] The Court agrees with both parties’ alternate submission on the issue of how BP’s length of employment should be calculated in light of the interruption between July 2002 and January 2003. As such, her length of service should be calculated from February 2001 to November 2017, less the period of 6 months from July 2002 to January 2003 during which she was not working for CHC. This translates to 16 years and 3 months of employment.

[39] The facts support a finding that the first period of employment from February 2001 to July 2002 should not be discounted in the overall calculation by reason of the interruption in employment. The Court notes the following:

• the interruption was of short duration when looked at in the context of the entire period of continuous employment;
• she was re-hired soon after her departure;
• BP’s sworn affidavit evidence is that the co-worker had called her on behalf of the new manager; she was told that things had improved and she was missed;
• she soon thereafter met with the new manager and founder/CEO of Classic Care;
• the Court is mindful that BP communicated with the new manager and wished to return; this does not detract from the reasonable inference that the employer played an important role in her return to CHC.

[40] The length of BP’s employment with CHC when looked at individually and collectively with other relevant factors supports and 18 months reasonable notice of termination.

[41] The Court agrees with the comments of Superior Court Justice Lederman in Drysdale v. Panasonic Canada Inc. [2015] O.J. no 6324, found at para. 14:

“14…An employee’s length of service is an important factor in the determination of reasonable notice. For one thing, it has been said that “a long term employee has a moral claim which has matured into a legal entitlement to a longer notice period”. (see Ansari v. British Columbia Hydro and Power Authority, [1986] B.C.J. no 3005 at para. 26 )”

Moreover, having served one employer for such a lengthy period of time, a potential new employer may view that individual as rather set in his ways and not adaptable to change. Whatever the reason, courts have considered long term service as a factor towards increasing the notice period”.

BP employment was terminated at age 53

[42] As is most often the case, the dismissal of a long standing employee involves older individuals. BP was 53 years old when her employment was terminated in November 2017.

[43] She had spent most of her career as a pharmacist since her admission to the Ontario College of Pharmacists in February 2000 working for CHC.

[44] The older age of an employee is a relevant consideration in assessing the appropriate notice period.

• See: Fermin v. Intact Financial Corp. [2016] O.J. no 4830 Drysdale v. Panasonic Canada Inc., op. cit. Bramble v. Medic Health, [1999] N.B.J. no 307

[45] It is generally accepted that a longer period of time will be required for an older employee to find comparable employment. Reference is often made in support of this proposition to the following analysis of the Supreme Court of Canada in McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at para. 92:

“92…Baring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills. Their difficulty is also influenced by the fact that many in that age range are paid more and will generally serve a shorter period of employment than the young, a factor that is affected not only by the desire of many older people to retire but by retirement policies both in the private and public sectors”.

[46] While BP is a skilled and experienced pharmacist, there is nothing in the evidence to support a finding that she is exempt from the limitations identified by the Supreme Court of Canada as a probable consequence of her age at the date of dismissal.

BP’s physical limitations

[47] BP’s physical limitations are raised as an impediment to her ability to work in a retail pharmacy setting which would require her to stand up most of the time to serve clients. Common sense and life experience would suggest that this is a reasonable assumption.

[48] The unchallenged medical evidence of Dr. Anu Chadha as found in her letter dated May 2, 2018 and attached to BP’s August 31, 20178 affidavit is that:

“…Mrs. Peterko, Bozena, has been suffering from chronic pain on her back, knees and feet. She cannot be in standing position for prolonged period of time, as it aggravates her pain…”

[49] The legal significance of a medical condition curtailing an employee’s ability to find comparable work appears to be as expressed by Justice Aston in Dwyer v. Advanis, [2009] O.J. no 1956 at para. 40:

“40. I do not think the factors should include Mr. Dwyer’s health situation, at least not the issue of “reasonable notice”. As noted by McLachlin J. (as she then was) in Nicholls v. Richmond , the proper period of notice depends on the reasonable expectations of the parties at the time the contract is made. Their rights and obligations should not be altered by unforeseen intervening future events”.

[50] More recently, the British Columbia Court of Appeal in Pakozdi v. BB Heavy Civil Construction Ltd. [2018] B.C.J. no 65, found that the trial judge had erred by adding 3 months to the 5 months’ notice period found to be reasonable because of the employee’s medical condition. The Court stated the following at paras. 32 and 34:

“32. I cannot agree that an employee’s “worsened medical condition” provides a basis for increasing the notice period beyond the period assessed by reference to the Bardal factors…”

“34. It may be that in an appropriate case an employee’s health could be relevant to the assessment of reasonable notice (as opposed to an independent factor increasing the notice period)…”

[51] BP’s physical limitations are found to be relevant to the assessment of reasonable notice set at 18 months. It is not an independent factor increasing the notice period but part of the equation. It is part of BP’s reality of being removed from a close to 17 years work environment in which she could perform her duties while sitting and now called upon to function in a setting where it is reasonable to expect that she will have to stand most of the time to serve clients.

Character of BP’s employment

[52] The Court agrees with CHC’s counsel submission in regard to the character of BP’s employment. The evidence establishes, on balance, that she occupied a professional position as a pharmacist. She was not a manager nor did she occupy a senior position within CHC.

[53] What then is the significance of the nature and character of BP’s work with CHC?

[54] CHC’s argument is that BP relies on cases to support her claim for 23 months reasonable notice where the employees were holding executive or managerial positions.

[55] There is no question that character of service is one of the factors identified in Bardal. A review of the cases also support the notion that longer periods of notice have traditionally been reserved for employees holding executive or managerial positions.

[56] However, as already noted, the character of employment appears to be declining in importance. The Ontario Court of Appeal in Di Tomaso v. Crown Metal Packaging Canada LP 2011 ONCA 469, [2011] O.J. no 2900 stated the following at para. 27:

“27. Crown Metal would emphasize the importance of the character of the appellant’s employment to minimize the reasonable notice to which she is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today a factor of relative importance…”

[57] The fact that BP did not occupy a managerial position with the power to hire, dismiss, evaluate employees, etc., does not mean that she did not develop a specialized skill set specific to the care of long-term and generally elderly patients. The reality is that she worked for CHC for close to 17 years in such a specialized setting caring for elderly patients. This fact cannot be ignored in considering the nature and character of her employment.

Availability of similar employment having regard to BP’s experience, training and qualifications

[58] The evidence reveals that BP has the following experience, training and qualifications:

• In 1989, she received both a Bachelor and a Master in Pharmacy and was licensed as a pharmacist in Poland;
• she worked as a pharmacy assistant / technician at a retail drug store beginning in 1997;
• in 1996, she wrote and passed Ontario’s pharmacist licensing exams; she completed the required internship and obtained her license from the Ontario College of Pharmacists in February 2000;
• she worked for Classic Care (which was later acquired by CHC) from February 2001 to July 2002;
• she worked for a retail drug store from October 2002 to January 2003;
• she worked for CHC from January 2003 to November 2017;
• she has completed a number of courses since her termination:
  • Canadian Diabetes Educator course;
  • Cardiovascular Program Training course;
  • Injections and Immunizations program;
  • Ten courses through the Ontario Pharmacist Association;
  • Training in Microsoft Excel through the Youth Services Bureau.

[59] There is no question that BP has the experience, training and qualifications to work as a pharmacist in a retail environment. Such a finding is not disputed by BP. In cross-examination, she agreed with counsel’s suggestion that “at the end of the day, they’re both pharmacist’s jobs…” (see line 12, Q. 126, p. 22 of transcript).

[60] It is also clear from the evidence that there is a fairly large demand for dispensary pharmacists in the Ottawa region. This finding is based on the following material:

• Affidavits sworn by BP on August 31, 2018 and October 23, 2018;
• BP’s cross-examination of October 25, 2018 and answers to undertakings;
• Affidavit of Ashley Boag dated October 4, 2018.

[61] This factor, when looked at separately, weighs in favor of a shorter reasonable notice period. When looked at in the context of all the relevant circumstances, it is found to support a reasonable notice period in the range of 18 months.

BP’s efforts to mitigate her damages

[62] The material already referred to also establishes that BP, soon after her dismissal, made reasonable efforts to mitigate her damages by seeking employment. There is no evidence to support CHC’s assertion that the reasonable notice period should be reduced as a result of her failure to mitigate.

[63] In fact, the Court finds that she did not fail to mitigate. CHC has not met its burden of proving that BP failed to take reasonable steps to find a comparable position reasonably adapted to her abilities.

[64] This finding is based on the following:

• her evidence is that she started to apply for work within 2 weeks of her dismissal;
• she had applied to numerous positions as a pharmacist as evidenced by the exhibits attached to her affidavits;
• she has applied for positions provided by counsel for CHC;
• she has applied for positions outside the field of pharmacy:
  • Evaluator 111 at Health Canada;
  • Clinical Research Officer at the Canadian Agency for Drugs and Technologies;
  • Medical Evaluator with Health Canada.
• she has registered with several job search websites and registered to receive job alerts from Human Resources and Skills Development Canada;
• she has reached out to her professional network;
• as noted earlier, she has completed various courses and additional training.

[65] The Court notes that there was no suggestion made to BP during her October 25, 2018 cross-examination that she was not making reasonable efforts to find comparable employment.

[66] Therefore, there is no reason to reduce the reasonable notice period of 18 months on the basis of a failure to mitigate.

Conclusion

[67] For the reasons articulated herein, the Court finds that the reasonable notice period of termination in this matter is 18 months. This translates to the following damages payable by CHC to BP:

Loss of income: $145,666.82

• Calculations are based on annual income of $135,350.
  • $135,350 (yearly) divided by 12 months = $11,279 (monthly)
  • $11,279 (monthly) X 18 months (notice) = $203,022
  • $203,022 - $57,355.18 (paid under ESA) = $145,666.82.

Loss of Benefits Health : $856.82

• $293.26 monthly contribution by CHC
• $293.26 (monthly) X 18 months (notice) = $5,278.68
• $5,278.68 - $4,421.86 (already paid) = $856.82

Professional Fees: $1,200.00

[68] In regard to the issue of contingency, the Court favors the trust approach. The entire award is therefore impressed with a trust in favor of the defendant CHC. At the end of the 18 month notice period, which is May 15, 2019, the plaintiff shall account to CHC any earnings obtained from new employment within the said notice period so as to reduce the award accordingly. The parties may set a hearing before the Court in the event of dispute.

[69] The Court makes the following orders:

1. CHC shall pay damages to BP in the amount of $145,666.82 for loss of income. These damages are subject to the trust noted above in favor of CHC.
2. CHC shall pay damages to BP in the amount of $856.22 for loss of health benefits.
3. CHC shall pay damages to BP in the amount of $1,200.00 for professional fees.
4. Pre-judgment and post-judgment interest are payable in accordance with the Courts of Justice Act as of November 15, 2017.

[70] The parties are asked to attempt to resolve the question of costs for these proceedings. If they are unable to do so, they shall exchange written submissions and file same with the Court on or before March 15, 2019. Submissions shall not exceed 5 pages and shall include a bill of costs.

Justice R. Laliberte Date: 2019/02/14