Court File and Parties

COURT FILE NO.: CV-15-541070 DATE: 2019-01-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David Gent, Plaintiff AND: Strone Inc., Defendant

BEFORE: Pollak J.

COUNSEL: R. Mark Fletcher and Justin Tetreault, for the Plaintiff Lior Samfiru and Stan Fainzilberg, for the Defendant

HEARD: November 6, 2018

Endorsement

1The Plaintiff, David Gent ("Mr. Gent") brings this motion for summary judgment of his action for wrongful dismissal pursuant to Rule 20 of the Rules of Civil Procedure. He claims he was constructively dismissed by reason of a lay-off after 23 years of employment. His employer, Strone Inc. (“Strone”) denies he was wrongfully dismissed and submits in the alternative that if he was constructively dismissed, he failed to mitigate his damages by refusing a recall to his employment.

2Mr. Gent was 53 years of age at the time of his lay-off. He commenced employment with Strone around May 1992 as a carpenter. He was promoted and at the time of the lay-off his position was a Health & Safety Training Specialist.

3Strone does emergency work for restoration and remediation for residential, commercial, industrial, and municipal clients. The volume of its work is dependent on demand for its services.

[4] Mr. Gent’s evidence is that his duties at the time of the lay-off included: (a) “Developing training material and delivering safety training at Strone's head office and locations around Ontario; (b) Performing site and branch safety audits to confirm safety performance and determine gaps in processes; (c) Working with WSIB to coordinate the return to work of injured employees; and (d) Chairing Strone's Joint Health and Safety Committee.”

5He testified that he worked mainly in the office performing tasks that were not related to any specific jobs. He was not actively involved daily with any jobs. He was asked to visit worksites a total of 4 times a month.

6Strone’s evidence is that Mr. Gent had no management or supervisory functions. His duties would change depending on Strone’s business needs. He did work on client job sites.

7There is a conflict in the evidence of Mr. Gent and Strone with respect to the nature of his duties. Neither party identified or made submissions with respect to the relevance of this conflict.

8The parties have agreed on the monthly quantification of Mr. Gent’s damages, if any, to be awarded by this Court.

[9] The parties agree that the issues on this motion for summary judgment are: (a) Is this case appropriate for summary judgment? (b) If so, was Mr. Gent's employment constructively dismissed when he was laid off on October 15, 2015? (c) If so, what is Mr. Gent's reasonable notice period? (d) What are Mr. Gent's damages over his reasonable notice period? and (e) Did Mr. Gent make reasonable efforts to mitigate his damages?

10Both parties agree that summary judgment is appropriate in this case. Mr. Gent submits that there is no genuine issue requiring a trial as the evidence on the record is sufficient to make the necessary findings of fact, apply the law to the facts and achieve a fair and just result on the merits of the action.

11Strone submits that in the interest of proportionality, cost efficiency, and finality in concluding an action that has been ongoing for almost 3 years, this motion is appropriate.

12On this motion, the test to be applied is set out in the Hyrniak v. Mauldin, 2014 SCC 7, 2014 CarswellOnt 640 (SCC). “There will be no genuine issue requiring a trial when a motion judge can reach a "fair and just determination on the merits".” The judge must be able to make the necessary findings of fact; apply the law to those facts; the motion must be proportionate, more expeditious and a less expensive procedure to achieve a just result.

13The parties agree on Mr. Gent's length of employment (23.5 years), age (53), title (Health & Safety Training Specialist), and compensation, and there are no allegations of cause.

14They disagree on his duties as referred to above.

15In 2014, Strone had a significant decrease in its business.

16Strone permanently laid off 22 employees (with severance packages) in January 2015.

17On October 15, 2015, Strone temporarily laid off Mr. Gent and two other employees and permanently laid off other employees with severance packages.

[18] On October 15, 2015, Strone’s Vice-President of Operations and Planning met with Mr. Gent and told him that because of the decrease in business, he would be temporarily laid off and recalled back to work as soon as possible when business improved. Mr. Gent’s lay-off letter: (a) stated that Strone would pay 100% of the Plaintiff's group benefits during the temporary layoff period, including the premiums that the Plaintiff paid himself; (a) asked him to keep Strone informed about his ongoing availability and contact information so that it could recall him as soon as possible; and, (b) asked him to return all of the company's tools and equipment, including the company car which he would not use while on a temporary layoff.

19Strone’s evidence is that it decided which employees to temporarily layoff based on their longer years of service, skillsets and experience. It planned on recalling them. Mr. Gent knew about the permanent and temporary layoffs.

20Mr. Gent emailed the Vice-President after the meeting and gave him his email address, home phone number, and availability to be recalled, stating "I am available every day as always". On October 19, 2015, Mr. Gent emailed again stating "I am available for work every day this week."

21Around October 20, 2015 Strone was retained to repair significant damage at a major Toronto hotel. Strone’s evidence is that management discussed recalling Mr. Gent to work as he was typically involved with large claims. Strone did not know the scope of the project and made no decision with respect to Mr. Gent’s recall.

22On October 27, 2015, Mr. Gent, through counsel, advised Strone that he considered his temporary layoff to be a constructive dismissal. Counsel for Strone replied that there was a possibility that Mr. Gent would be recalled to work and that he would update him by Monday, November 9, 2015. Mr. Gent’s counsel immediately replied by email advising that Mr. Gent felt that the relationship had broken down and that he would not return to work but start an Action against Strone.

23On November 10, 2015, Strone’s counsel sent a letter to counsel recalling Mr. Gent to “active employment”.

24Strone’s evidence is that it had become clear that Mr. Gent's skillset was needed for the new work because it had significant asbestos/mould issues which Mr. Gent was trained to work with.

25On November 12, 2015, Strone’s counsel emailed asking if Mr. Gent would return to work. Counsel replied that he would not. No inquiries with respect to the recall were made.

26Mr. Gent alleges that Strone's offer “was a sham made only in response to his litigation and not a bona fide attempt to return him to work”.

[27] The recall letter states: “Dear Dave Re: Temporary Layoff_______________________________________________ This will confirm our discussion of today wherein you were informed that due to decrease in business volume we will be placing you on a temporary layoff. Next Pay: Payment will be made to you on October 22nd, 2015 to include all hours worked from October 3rd up to and including today. Employee Benefits: During this period STRONE will pay 100% of your benefits cost to allow you to participate in the Company’s benefit plan. It is imperative that during this time you remain in contact with the office and keep us abreast of your ongoing availability. To ensure that we have your contact information, please E mail Kabir.shaal@strone.ca and Maria.D’Souza@strone.ca and provide regular Weekly or Monthly availability and confirmed number to reach you by phone so we may be able to recall you to work as soon as possible. As we cannot determine the amount of time of this layoff we require you to return all company equipment and tools – this includes the company vehicle along with all tools; cell phone, computers, HD card, keys and any other equipment you may have in your possession. Your record of employment will be electronically submitted to HRDC and a copy will not be sent to you. We encourage you to file as soon as possible. Yours truly, STRONE Inc. Kabir Shaal V.P. Operations”

28Mr. Gent’s evidence is that he believed that it would have been embarrassing and degrading to return to work. He does not however, give any evidence about why he held this belief. He also gives no evidence with respect to his complaint about the vagueness of the recall letter with respect to what his duties would be or any evidence regarding what duties could possibly be assigned to him.

Was Mr. Gent constructively dismissed?

29Mr. Gent argues that there was no employment term giving Strone the right to temporarily lay him off and that he did not consent to the layoff. His employment was therefore constructively dismissed on October 15, 2015. Strone failed to provide him with work and compensation in violation of the fundamental terms of employment. (Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10 at paras. 82-85 (SCC)).

30Strone alleges that he agreed to his layoff by providing his availability to work on October 15 and 19, 2015. I find that this is not sufficient evidence to support an argument that it was a term of Mr. Gent’s employment that Strone could lay him off temporarily. Mr. Gent’s advice to Strone on his availability for recall cannot be construed as evidence of his agreement to change such a significant term of employment. Similarly, neither does his knowledge and understanding of Strone’s business difficulties have the effect of altering such a significant term of employment. I find that Mr. Gent was constructively dismissed on October 15, 2015. He is therefore entitled to be paid damages for Strone’s failure to provide him with reasonable notice of his termination of employment, subject to his obligation to mitigate his damages.

31On this motion, Strone does not allege that Mr. Gent’s job search efforts were insufficient, but argues that he failed to mitigate his damages when he refused Strone's offer to be recalled to work. Strone has the burden of proof in this regard.

32Both parties rely on the Supreme Court of Canada case of Evans v. Teamsters, Local 31, 2008 SCC 20 at paras. 30 and 33 (SCC) wherein the duty to accept a reemployment offer was summarized as follows:

30 I do not mean to suggest with the above analysis that an employee should always be required to return to work for the dismissing employer and my qualification that this should only occur where there are no barriers to re-employment is significant. This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Michaels v. Red Deer College (1975), [1976] 2 S.C.R. 324 (S.C.C.)). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so "[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious" (Mifsud v. MacMillan Bathurst Inc. (1989), 70 O.R. (2d) 701 (Ont. C.A.)). In Cox, the British Columbia Court of Appeal held that other relevant factors include the history and nature of the employment, whether or not the employee has commenced litigation, and whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left (paras. 12-18). In my view, the foregoing elements all underline the importance of a multi-factored and contextual analysis. The critical element is that an employee "not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation" (Farquhar, at p. 94), and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee's position would have accepted the employer's offer (Reibl v. Hughes, [1980] 2 S.C.R. 880 (S.C.C.)), it is extremely important that the non-tangible elements of the situation - including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements - be included in the evaluation.

33In sum, I believe that although both constructively dismissed and wrongfully dismissed employees may be required to mitigate their damages by returning to work for the dismissing employer, they are only required to do so where the conditions discussed in para. 30 above are met and the factors mentioned in Cox are considered. This kind of mitigation requires "a situation of mutual understanding and respect, and a situation where neither the employer nor the employee is likely to put the other's interests in jeopardy" (Farquhar, at p. 95). Further, the reasonableness of an employee's decision not to mitigate will be assessed on an objective standard.

33Strone also relies on the recent decisions in Bevilacqua v. Gracious Living Corp., 2016 ONSC 4127 at para. 27, and Michalski v. CIMA Canada Inc., 2016 ONSC 1925 at para. 27, wherein after finding that the plaintiffs had failed to mitigate their damages by not returning to work after being recalled, the Court limited their damages to the period between the temporary layoff and the date of the recall.

34Strone emphasizes that Mr. Gent advised through his counsel on November 9, 2015 that he would not return to work under any circumstances. This was before he received the recall letter and he therefore did not know what the terms and conditions of recall were.

[35] Strone’s evidence is that the recall letter sent to Mr. Gent advised him of the following: (i) “That Strone had new work available for him and would require his services as of Monday, November 16, 2015; (ii) If he could not return to work as of November 16, 2015, he could contact Strone to discuss an alternative date; (iii) That Strone maintained no hard feelings or ill will towards him and still considered him a valued employee; (iv) That he would suffer no reprisals; (v) That Strone confirms its understanding that his return to work is not an admission that future layoffs are permissible or that he agrees with Strone's position regarding to any pending litigation; and, (vi) If he had any questions, he was free to contact Strone to discuss.”

36Strone argues that there was no evidence that it would not have paid Mr Gent his lost wages during the lay-off.

37Mr. Gent submits that one reason for refusing the offer of re-employment was because it would be too embarrassing and degrading for him to return to work but as noted above, gave no further evidence in this regard.

38To determine whether Mr. Gent should have accepted the recall offer to fulfill his obligations to mitigate his damages, the parties agree that the applicable test for this Court to consider is “whether a reasonably objective individual in his circumstances would not have concluded that returning to work would be too embarrassing, humiliating, and/or degrading”.

39As well, the Court must consider the relevant factors I have highlighted in bold as set out in the Evans case.

40During his cross-examination when asked what evidence he had that it would have been humiliating to return to work, he stated "it just would be". Mr. Gent’s belief was that the recall letter was "words written on a letter, probably by a lawyer" and that the temporary layoff and the recall were part of Strone's legal strategy.”

[41] Strone relies on the case of Hooge v. Gillwood Remanufacturing Inc., 2014 BCSC 11, where it was held: "Even if the offer to re-employ was motivated by a desire to avoid the payment of damages in lieu of severance, that does not make it reasonable to decline the offer. It seems to me that an employer who has laid-off an employee, or wrongfully terminated an employee without due notice, may very well come to the conclusion, particularly with the benefit of legal advice, that its actions constituted a wrongful dismissal and may seek to mitigate its own exposure to the payment of damages by offering to re-hire the employee. That is precisely what occurred in Besse. Indeed, it appears from what the Court said in Evans that even if the offer is only return to temporary employment, the essential question remains whether a reasonable person in the employee's position would have accepted the offer, return to his former position from which he could then begin to search for alternative employment. The offer of re-employment does not, however, change the fact that the employer wrongfully breached the contract of employment. It can only serve to provide an opportunity for the employee to mitigate his loss resulting from the breach, in whole or in part, by accepting the offer if, objectively viewed, it is reasonable to do so."

[42] Strone submits that Mr. Gent was recalled to the same position (referring to “active employment”) and on the same terms and conditions as he had prior to his layoff. Mr. Gent admitted during his cross-examination, that he understood the language "business as usual" in the recall letter to mean that he "would be treated like I (sic) normally was." Mr. Gent’s position on this motion was that the recall letter offer had no specifics about his duties, compensation, or other terms of his employment and did not offer to make him whole for the period of his layoff. It is however, Mr. Gent’s evidence that he would not have accepted any work from Strone. I find that the recall letter clearly addresses the issues which may have been of concern to Mr. Gent. He was recalled to active employment with assurances that: (i) if he could not return to work as of November 16, 2015, he could contact Strone to discuss an alternative date; (ii) Strone maintained no hard feelings or ill will towards him and still considered him a valued employee; (iii) he would suffer no reprisals; (iv) Strone confirms its understanding that his return to work is not an admission that future layoffs are permissible or that he agrees with Strone's position regarding to any pending litigation; and, (v) if he had any questions, he was free to contact Strone to discuss.”

43I must consider the factors set out in the Evan’s case and the inquiry about “whether a reasonably objective individual in his circumstances would not have concluded that returning to work would be too embarrassing, humiliating, and/or degrading”. I am of the view that a reasonably objective individual in his circumstances would not have concluded that returning to work would be too embarrassing, humiliating, and/or degrading. Mr. Gent has given no evidence as to how or why he would be “humiliated, embarrassed or degraded”. The evidence is that, regardless of any offer that would have been made by Strone, Mr. Gent never had any intention of accepting work under any circumstances. He never considered or evaluated the offer to work at Strone. He commenced an action against Strone.

44Strone’s evidence, on the other hand, in addition to the assurances they gave him in the recall letter, was that Mr. Gent was being recalled to assist with the new work Strone had been hired to perform and that such work was consistent with the work he had performed with Strone in the past, depending on the needs of Strone. All of these factors must be considered. I am of the view that a reasonably objective individual in his circumstances would not have concluded that returning to work would be too embarrassing, humiliating, and/or degrading.

45Strone submits that based on the relevant jurisprudence, Mr. Gent's damages are limited to his loss of income between the date he was temporarily laid off (October 15, 2015) and the date when he was offered re-employment and the ability to mitigate his damages (November 10, 2015), a period of 3.5 weeks.

46It should be noted that Strone continued to provide the Plaintiff with his group benefits during the temporary layoff period and the Plaintiff did not suffer any loss with respect to his group benefits. Accordingly, the Plaintiff's wrongful dismissal damages (calculated on the basis of his base salary of $72,000.00 per annum) are limited to $4,846.15.

47In Mr. Gent’s cross-examination he testified that he never considered that he would be recalled, even after being told that this was a distinct possibility on November 5, 2015 and that he would not have returned to work at the time under any circumstances.

48Mr. Gent’s counsel advised Strone, before the recall letter offer, that "in any event, the possibility that your client may decide to recall our client does not change our constructive dismissal analysis. Our client does not trust your client and the relationship has broken down due to your client's action".

[49] Strone submits that the subjective belief of Mr. Gent, with no other objective evidence to support his belief cannot objectively support a finding that returning to work at Strone would have been humiliating, embarrassing, and/or degrading. Before his lay-off, he had worked for Strone for 23.5 years and had a harmonious and amicable relationship. Mr. Gent in cross-examination advised that he had no issues with his superior and that Strone was a good workplace, and that he enjoyed working there. In this regard, Strone relies on the case of Loehle v. Purolator Courier Ltd. where the Court stated: "Considering the totality of the evidence objectively, I am not satisfied the working environment would have been one of "hostility, embarrassment or humiliation". The working relationships were not "acrimonious" and the work would not have been "demeaning". Indeed, the situation was quite the opposite. Mr. Loehle, subjectively, may have felt embarrassed to return to a lower level but there was no evidence tendered to support an objective finding in this regard. It is unknown how other employees would have viewed Mr. Loehle's return as unit manager and how they would have reacted to his presence in this position."

50Similar to the Bevilacqua case, "Mr. Bevilacqua had testified that, by the time he was recalled, he had decided that he was not going back to work, as he had already decided to sue." The court held that "[T]here was nothing either in law or in interpersonal relations with his employer that prevented him from accepting the offer to return."

51Mr. Gent emphasizes that he had already commenced litigation when the recall offer was made. This is a factor that must be considered by the Court in accordance with the jurisprudence I have set out above. That factor is not determinative and does not preclude a finding by this Court that using the objective standard required, Mr. Gent should have accepted, or at least considered Strone’s offer of employment to fulfil his obligation at common law to mitigate his damages incurred by reason of Strone’s wrongful dismissal.

52On the basis of the evidence I have referred to above and in considering the offer letter that was sent to Mr. Gent, I find that Strone was recalling Mr. Gent to his position held prior to his layoff on substantially the same terms and conditions of employment. Strone also assured Mr. Gent that he would be treated normally with no reprisals or hard feelings and that Strone considered him to be a valued employee.

53Strone also acknowledged the fact that it accepted Mr. Gent‘s position that it had no right to lay him off temporarily.

54Further, Strone asked Mr. Gent to give them a call if he had any questions with respect to the content of the return to work letter.

55I am of the view that a reasonably objective individual in his circumstances would not have concluded that returning to work would be too embarrassing, humiliating, and/or degrading.

56In light of all of the evidence with respect to the close and good working relationship between Strone and Mr. Gent, I find that it is reasonable to conclude that Mr. Gent’s position that the fact that he had been “temporarily laid off” led to the total breakdown of the employment relationship between the parties, was not supported by the evidence and was not a conclusion that a reasonable person would reach.

57I find that Mr. Gent’s refusal to consider Strone’s offer of work was a “failure to mitigate” his damages. He is therefore entitled to damages of $4,846.50 (the parties agree on the quantification of these damages) from the date of his termination of employment to the date he could have commenced employment with Strone.

58Had this Court found that Mr. Gent had not failed in his obligation to mitigate his damages, the Court would have determined Mr. Gent’s damages for his wrongful dismissal as follows: Mr. Gent's age (53)(50 at termination), character of employment, length of service (23.5 years) and lack of similar employment opportunities. All of these factors support any award of a lengthy notice period.

59Mr. Gent submits that he would have been entitled to a reasonable notice period of twenty-four (24) months, based on the following cases:

Case Name	Position	Age	Salary	Seniority	Notice Period
David Gent	Health & Safety Training Specialist	50	$72,000.00	23.5 years
Tennant v. Greyhound Lines of Canada Ltd., MPBOA, Tab 12	Regional Safety Coordinator	56	$37,440.00	22 years	18 months
Cuconato v. Parker Auto Care Ltd., 2018 ONSC 2790, MPBOA, Tab 13	Mechanic	46	$60,928.00	25 years	20 months
Kerr v. Arpac Storage Systems Corporation, 2018 BCSC 660, MPBOA, Tab 14	Occupational Health & Safety Manager	70	$65,500.00	22 years	20 months
Dhatt v. Kal Tire, 2015 BCSC 1070, MPBOA, Tab 15	Mechanic	53	$60,960.00	23 years	21 months
Drysdale v. Panasonic Canada Inc., 2015 ONSC 6878, 2015 CarswellOnt 18495 (SCJ), MPBOA, Tab 2	Shipper	58	$62,000.00	23 years	22 months

60Strone submits Mr. Gent was employed in a non-managerial and non-supervisory role of Health and Safety Training Specialist and that a reasonable notice period would be 12 months.

61In support of Strone's position, it relies upon the following cases:

CASE	POSITION	YEARS SERVED	AGE	NOTICE AWARD
Garvin v. Rockwell International of Canada Ltd.	Quality Control Engineer	21 years	45	8.5 months
Bohay v. 567876 Saskatchewan Ltd.	Hairstylist	22 years	44	9 months
Muraca v. Woodward Stores Co.	Maintenance Employee	22 years	50	10 months
Cronk v. Canadian General Insurance Co.	Assistant Underwriter	29 years	55	12 months
Adams v. Johns-Manville Canada Inc. and two other actions (for Milford J. Wannamaker)	Purchasing Coordinator	21.5 years	57	12 months
Taylor v. Bank of Nova Scotia	Senior Deposit Accounting Clerk	20 years	51	12 months

62Considering all of the Bardal factors, and the jurisprudence referred to by the parties, I find that the period of reasonable notice to be eighteen months.

Costs

63If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Plaintiff’s submissions are to be delivered by 12:00 p.m. on January 18, 2019, and the Defendant’s submissions are to be delivered by 12:00 p.m. on January 25, 2019. Any reply submissions are to be delivered by 12:00 p.m. on January 31, 2019.

64Submissions are to be delivered to Room 170, 361 University Avenue or via email to my assistant. After January 22, 2019, if no submissions are submitted for costs, the matter will be considered at an end and the file returned to the motions office.

Pollak J.