OSHAWA COURT FILE NO.: CV-18-273-00 DATE: 20190115 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Gerry VandePol, Plaintiff – and – Cowan Buick GMC Limited, Defendant

Counsel: Stan Fainzilberg, Counsel for the Plaintiff William Gale, Counsel for the Defendant

HEARD: November 19, 2018

REASONS FOR DECISION

DE SA J.:

Overview

[1] The Plaintiff, Gerry VandePol, has brought an action against the Defendant, Cowan Buick GMC Limited, for wrongful dismissal. The Defendant has acknowledged that the Plaintiff was dismissed without cause. The proper notice period remains to be decided.

[2] At the conclusion of the trial, I reserved my decision. These are the reasons for my decision.

Summary of Facts

Termination from Employment

[3] The Defendant is a GM automobile dealer located in Bowmanville, Ontario. The Plaintiff was employed as an Auto Body Painter in the Defendant’s auto body shop from July 13, 2011 until June 9, 2017, at which point his employment was terminated without cause.

[4] The Defendant paid the Plaintiff five (5) weeks termination pay pursuant to the Employment Standards Act, R.S.O. 2000, c. 41 as amended, which amounted to $5,026.10 at the time of the Plaintiff’s dismissal.

[5] During the course of his employment, the Plaintiff had been paid on a flat rate basis, where each painting job would be allocated a certain number of hours (at $19 per hour) to complete. The Plaintiff would receive a payment amount per job. Whether he completed the particular task in less time or more time did not matter. He was still paid the allotted rate per job. Accordingly, the more efficient he was with a job, the more his overall pay would be.

[6] During the preceding years of his employment, the Defendant issued T4 slips to the Plaintiff in the following amounts:

2014 $37,346.00 2015 $50,729.43 2016 $61,593.06 2017 (January 1 to June 9, 2017) $34,473.76

Efforts to Find Employment

[7] At the time of his dismissal, the Plaintiff was 57 years of age. He had worked for the Defendant for approximately 6 years. The Plaintiff had been in the industry since the age of 16. After high school, he took various trade courses, but never completed his diploma. Prior to being employed by the Defendant, he had his own business (body shop) for a number of years, but couldn’t keep the business going because of the rising cost of leasing space.

[8] After his dismissal, the Plaintiff made various attempts to obtain employment. He spoke with Bill Chase who was well connected in the industry. Mr. Chase had contacts at more than 40 auto dealers. Mr. Chase testified at trial and confirmed that he spoke with the Plaintiff, but was unable to assist him with finding employment. There were no openings at the time the Plaintiff called him and none that he knew of thereafter. According to Mr. Chase, most painters stayed at their jobs for as long as they could.

[9] In January 2018, the Plaintiff became more active online. He completed his resumé in January 2018 and started looking for employment on various websites such as Kijiji and Indeed. This was new for the Plaintiff as he had never had to look for jobs online before and would always obtain work through word of mouth.

[10] The Plaintiff testified that from the time of his dismissal, he had applied to 20 or 30 different positions including job applications to Alex Pol Tree Services, Uber, and RimPerfection. The Plaintiff testified that he also submitted job applications in other industries including cement, landscaping, extendicare, maintenance mechanic positions, steel fabricators, ground maintenance, custom cars and even funeral services.

[11] The Plaintiff’s mother-in-law (daughter’s grandmother) had surgery some months after his dismissal and became very dependent. He was making the best efforts he could to look for alternate employment in the circumstances.

[12] The Plaintiff ultimately got a job with Torstar delivering bulk newsprint. He is still working there at the current time.

Evidence of Employer, Ellen Cowan

[13] Ellen Cowan was the manager at Cowan Buick. She testified at trial. She had worked in the industry for 35 years. Her father owned the dealership and she worked closely with him. She oversaw the various departments including service, parts, sales, and the body shop.

[14] According to Ms. Cowan, the reason the Plaintiff’s salary had been increasing was because of inefficiencies in his own work. Much of his paintwork had been coming back and had to be repainted. The insurers were complaining about the quality of the Plaintiff’s work. Accordingly, the work would be sent back, and repainted, and the Plaintiff would get paid again for the same job. Cowan Buick had been losing money on the body shop, and the decision was made to let the Plaintiff go.

[15] According to Ms. Cowan, the Plaintiff seemed more interested in other things and wasn’t showing a real interest in the work. He would joke around that he was wealthy and didn’t need employment. She testified that the Plaintiff even once told her to just “cut him a cheque”, almost inviting her to dismiss him.

Analysis

Calculation of Reasonable Notice

a) General Principles

[16] An employee, when dismissed without cause, is entitled to be placed in the same position he or she would have been in had he or she been given the appropriate notice by the employer. [1] Damages for wrongful dismissal are designed to compensate the employee for the breach by the employer of the implied term in the employment contract to provide reasonable notice of termination.

[17] The damages are assessed by calculating the salary the employee would have received had he or she worked during the notice period, notwithstanding that the employee may, in fact, have been prevented from doing so. The damages are based on the premise that the employee would have worked during the notice period. Sylvester v. British Columbia, [1997] 2 S.C.R. 315.

[18] As explained in Wallace v. United Grain Growers Ltd., [1997] 3 SCR 701, at para. 66-70:

In the event that an employee is wrongfully dismissed, the measure of damages for wrongful dismissal is the salary that the employee would have earned had the employee worked during the period of notice to which he or she was entitled: Sylvester v. British Columbia, [1997] 2 S.C.R. 315. The fact that this sum is awarded as damages at trial in no way alters the fundamental character of the money. An award of damages in a wrongful dismissal action is in reality the wages that the employer ought to have paid the employee either over the course of the period of reasonable notice or as pay in lieu of notice.

[19] While the calculation is hardly a fixed formula, the courts have generally held that the determination of an employee’s notice period is determined by a consideration of the following factors:

1. the position the employee held;
2. the employee’s length of service with the employer;
3. the employee’s age; and,
4. the availability of comparable employment.

See Bardal v. Globe & Mail Ltd., (1960), 24 D.L.R. (2d) 140 (Ont. H.C.)

[20] The notice includes the entire compensation package including benefits and vacation pay. Monies received by an employee from the Canada Employment Insurance Commission (formerly Unemployment Insurance Commission) are not deducted from the payment in lieu of notice of termination that the employer is required to provide the employee. As stated by the Supreme Court of Canada in Jack Cewe Ltd. v. Jorgenson, [1980] 1 SCR 812:

Turning now to the unemployment insurance benefits, I find the Company’s contention untenable. The payment of unemployment insurance contributions by the employer was an obligation incurred by reason of the respondent’s employment, therefore, to the extent that the payment of those contributions resulted in the provision of unemployment benefits, these are a consequence of the contract of employment and, consequently, cannot be deducted from damages for wrongful dismissal. …

See also IBM Canada Ltd. v. Waterman, 2013 SCC 70, at para. 51.

Application to the Facts of the Case

[21] The Plaintiff seeks 9 months of notice calculated at a salary of $65,000. Given the difficulty in finding employment, the Plaintiff takes the position that 9 months is a reasonable request. He asks that his 2014 salary be treated as an aberration and be excluded from the calculation of the average salary. Serrao v. National Bank of Financial Inc.: 2004 CarswellOnt 2748 (ON SC).

[22] The Defendant takes the position that the average salary should be calculated at a lower rate given that the Plaintiff’s historical remuneration has been inflated by his own negligence. The Defendant also submits that a 4 month period of notice is more appropriate given the general nature of the employment. Finally, the Defendant argues that the Plaintiff has failed to make adequate efforts to mitigation.

[23] I recognize the concerns raised by the Defendant. I accept Ellen Cowan’s evidence that issues with the quality of the Plaintiff’s work may have skewed his income to a range higher than warranted in the latter years of his employment. Accordingly, in my view, the appropriate salary to consider would be $50,000 (an average of the 3 years preceding his termination year).

[24] In the Plaintiff’s circumstances, he had worked for the Defendant for approximately 6 years, was 57 years old at the time of termination, and was employed with the Defendant as an Auto Body Painter.

[25] Evidence tendered at the trial indicated that it was difficult to get a “similar” style of work. Even Mr. Chase who was called by the Defendant confirmed it was a difficult time for a painter to get work. Given his age, and the fact that he had been employed in the same field from the age of 16, I accept that it was difficult for the Plaintiff to obtain alternate “comparable” employment.

[26] I also do not view his failure to seek employment online prior to January 2018 to somehow amount to a failure to mitigate as the Defendant suggests. In the Plaintiff’s experience, he had always been able to obtain employment by word of mouth. It is hard to attribute blame to the Plaintiff to not be engaged in online applications, particularly given the unique nature of his work, and the evident importance of contacts and word of mouth in the industry.

[27] The onus rests with the company to show that the employee did not make efforts to find alternate employment. The principal of mitigation in employment law is aptly summarized in Somir v. Canac Kitchens, a Division of Kohler Canada Co., 2006 Carswell Ont. 8108 (ONSC), at para. 58:

The onus rests on the defendant to show either that the plaintiff “found, or by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to her abilities. The defendant must establish that the plaintiff’s conduct in seeking to find alternative employment was unreasonable in all respects.

See also Chaffee v. Columbia Dodge (1967) Ltd., 2000 BCSC 310, at para. 32.

[28] In my view, the Defendant has failed to establish that the Plaintiff did not make adequate efforts to mitigate.

Disposition

[29] Having regard to all the circumstances, in my view, an appropriate range of notice would be 6 months (inclusive of vacation pay) calculated with an annual salary of $50,000. Minus the termination pay of $5,026.10, the balance owing is $19,974.

[30] I therefore order the Defendant pay to the Plaintiff the amount of $19,974 payable within 30 days from the release of this decision.

[31] If the parties are unable to agree on costs of this trial, the Plaintiff is to serve and file his submission on costs within 21 days from the date of this decision, and the Defendant will have 14 days thereafter to serve and file their responding submission on costs. The submissions should be no more than two pages in length.

Justice C.F. de Sa Released: January 15, 2019

Footnote

[1] See also Adjemian v. Brook Crompton North America, 2008 CarswellOnt 3304 (ON SC), at para. 24.