PETERBOROUGH COURT FILE NO.: CV-17-0043

DATE: 20191217

AMENDED DATE: 20191219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN: )

Christopher A. McLean )

) J. LeNoury and A. Sirlin, for the Plaintiff

Plaintiff )

• and - )

Dynacast Ltd. )

) S. Chaudhri and S. Khan, for the Defendant

Defendant )

) Heard: May 27-31; July 2-5; July 18; and

) August 16, 2019

SMITH, J.:

Reasons FOR JUDGMENT

AMENDED

PARAGRAPH [6]

Original: Was that the Plaintiff constructively dismissed by the Defendant and if so, what notice is he entitled to statutorily and at common-law?

Amended to: Was the Plaintiff constructively dismissed by the Defendant and if so, what notice is he entitled to statutorily and at common-law?

pARAGRAPH [103]

Original: I have also found that the Plaintiff is entitled to 24 months’ notice as a result of that constructive dismissal subject to a deduction from these amounts for income earned by the Plaintiff from his part-time work at Quickmill and Centracore during the notice period. There will also be an award of $25,000 in aggravated/moral damages.

Amended to: I have also found that the Plaintiff is entitled to 28 months’ notice as a result of that constructive dismissal subject to a deduction from these amounts for income earned by the Plaintiff from his part-time work at Quickmill and Centracore during the notice period. There will also be an award of $25,000 in aggravated/moral damages.

BACKGROUND

[1] The Defendant, Dynacast Ltd. (hereinafter ‘the Defendant’), is a large corporation with 23 facilities in 16 countries around the world. The company is engaged in the manufacture and sale of metal parts produced by way of a zinc die-casting process. The Fisher Tech division of the company sells die-casting equipment to other manufacturers. The Peterborough facility is the only unionized facility owned and managed by the Defendant.

[2] The Plaintiff, Christopher McLean, (hereinafter ‘the Plaintiff’), was born August 2, 1958. Following completion of his apprenticeship as an electrical technician in 1982, the Plaintiff commenced his employment with the Defendant where he worked on a full-time basis in a variety of capacities, including as a quality test technician, a cell service technician and a quality test service technician. Those were all unionized positions, which required the Plaintiff to be a member in good standing in the Independent Union of Precision Die-casters (hereinafter ‘the Union’). In 2010, the Plaintiff was promoted to the role of sales and service technician which was a non-union position. The Plaintiff’s employment with the Defendant ended on or about January 24, 2017.

[3] It is common ground that the Plaintiff was a highly regarded, long-time employee of the Defendant who was considered to by all witnesses to be reliable, highly skilled and extremely knowledgeable about the company’s equipment.

POSITION OF THE PARTIES

[4] The Plaintiff takes the position that he was constructively dismissed by the Defendant as a result of which he is entitled to reasonable notice of termination in the amount of 28 months salary and commission together with an order that he be made whole in regard to his participation in the Defendant’s Registered Savings Plan (RSP) for the duration of the notice. He also claims damages for bad faith in the amount of $100,000 and his costs of this action.

[5] The Defendant takes the position that there is no merit to the Plaintiff’s claim. It asserts there were good business reasons for “realigning” the Plaintiff’s position and that the new job description the Defendant prepared simply reflected what the Plaintiff was already doing. The Defendant submits that the Plaintiff had an obligation to try out the new position as a show of good faith. The Defendant also submits that the Plaintiff failed to properly mitigate his damages, if at all, and submits the Plaintiff’s claim should be dismissed with costs.

ISSUES

[6] Was the Plaintiff constructively dismissed by the Defendant and if so, what notice is he entitled to statutorily and at common-law?

[7] What was the nature and extent of the Plaintiff’s duty to mitigate his damages and what impact do his efforts in that regard have on any damage award?

[8] Did the Defendant act in bad faith in terminating the Plaintiff’s employment such as to give rise to an entitlement to damages?

EVIDENCE

(A) Evidence of the Plaintiff re: Employment History with the Defendant

[9] The Plaintiff testified that his first 28 years with the company were spent working on the shop floor. Die casting is a metal casting process that is characterized by forcing molten metal under high pressure into a mould cavity. This process is done by large machines which are fed large amounts of raw metal such as zinc which is heated by the machine until it is molten and is then injected into a mould under hydraulic pressure. The process generates a lot of heat and fumes, which makes the plant floor a challenging environment. The Plaintiff testified that work on the plant floor involved walking on flooring that was sometimes slippery from lubricant leaks. The mean temperature in the plant can be as high as 35-40°C because the casting machines generate heat at levels up to 500°C. The plant floor has burn hazards as a result and there can be periodic fires from hydraulic line leaks, which generate a number of risks including smoke inhalation. The plant floor has a very high noise level as a result of the multiple machines operating at any given point in time. Workers are required to wear coveralls and a shop coat at all times as well as facemasks, hearing protection, safety glasses and safety boots. The Plaintiff spent 28 years working each day in that environment; apparently, without complaint.

[10] In 2010, the Plaintiff accepted a newly created position as the sales and service technician in the Fisher Tech division of the Defendant. This was a promotion of the plaintiff into a new, non-union position created by the Defendant the details of which are set out in a letter prepared by the Defendant and dated April 5, 2010, found at Tabs 1 and 2 of Exhibit 2. That letter contains details of the compensation for the position, a position profile as well as a non-modification clause. This document was signed by the Plaintiff and a representative of the Defendant on April 6, 2010 following which the Plaintiff commenced his new duties. In my view, that document was the employment contract between the parties which governed their affairs at all material times.

[11] As sales and service technician the Plaintiff came into direct contact with customers of the Defendant. He was obliged to travel for work related reasons to Asia, Mexico and various points in the United States and Canada, something the Plaintiff enjoyed a great deal. The Plaintiff was supplied with a small office on the ground floor of the administrative section of the Defendant’s Peterborough plant which included a telephone and a computer. The Plaintiff was expected to deal with the customer sales and service components of his job in this office. Adjacent to the office was a “clean build area” where the Plaintiff was expected to perform the equipment troubleshooting, testing and equipment manufacturing aspects of his new position. The Plaintiff testified that this area was air-conditioned and had better air quality, better lighting and much lower noise levels than the plant floor. The area was also safer than the plant floor as there were no fumes, trip hazards, high temperatures, high noise levels, burn hazards or general safety risks. The Plaintiff testified that he found this position to be very fulfilling and that he enjoyed it immensely.

[12] The Position Profile for the sales and service technician job includes responsibility for managing customer’s needs, expanding sales of efficient tech renewal parts and equipment, visits to customer plants for Fisher Tech service, consulting, troubleshooting, training or sales as well as responsibility for the assembly, testing and approval of all equipment. The profile also states that the position will have minimal level of supervision and that the Plaintiff would report directly to the manager of Fisher Tech. The agreement of April 6, 2010 specified that compensation for the position would take the form of a salary in the amount of $62,000 per annum together with the opportunity to earn an additional five percent commission on spare parts sales and three percent for new machine/operating head and complete tool sales. The agreement also spelled out details regarding vacation, benefits and pension.

[13] The Plaintiff testified that his work time was more or less equally allocated to four areas which included being on-site with customers, working in the clean build room, doing sales and customer contact as well as general office work. He also testified that he would attend on the plant floor from time to time for the purpose of consulting with workers when a problem arose with one of the machines. The Plaintiff would help to diagnose the problem but would not assist with any repair work needed. The Plaintiff’s evidence about his daily activities in this position was confirmed by the Defendant’s former operations manager, Mr. Ravindar Singh, who also indicated that the Plaintiff was a highly valued employee who “knew every nut and bolt of every machine.” Mr. Michael Ireland, a unionized employee of the Defendant and a long-time union officer, also agreed with the Plaintiff’s description of his role and duties and described the plant floor conditions in terms similar to the Plaintiff’s own description.

[14] The Plaintiff produced pay stubs for 2014 through 2017 found at Tabs 7 through 10 of Exhibit 1. The stubs show regular annual pay ranging from a low of $62,826 to a high of $66,214. They also show commission income in 2015 in the amount of $5,867 and in 2016 in the amount of $8,789. The income information for 2017, being the year of termination, shows earnings to date of termination in the amount of $7,165 and commission income in the amount of $1,286.

[15] A performance review was conducted by the company regarding the Plaintiff on April 12, 2016. That review noted that the Plaintiff was congenial and helpful and worked well with others, that he could be depended upon “most of the time”; that he acted voluntarily in routine matters; that his safety record was good; and that he had somewhere between one and three attendance infractions. The Plaintiff also received a mark of “very good” for his adaptability to change. His manager commented on the report that the Plaintiff needed to make himself more available in the die-cast departments because of the decreasing workload in the Fisher Tech division. His manager further commented in the report that the Plaintiff “excels in most of his projects but always needs one or two reminders before they get completed.” Notwithstanding those generally positive comments, the Plaintiff was given a less than satisfactory overall rating of “improvement required”. No explanation was given by any of the witnesses for that apparent contradiction. I found it odd that an employee of a company the size of the Defendant only received one performance appraisal in the course of seven years in the same position. I was also struck by the timing of the report having regard for the timing of the events leading up to the Plaintiff’s termination of employment. The manager who completed the review was not called as a witness. The Plaintiff testified that this was the only performance review that he ever received in the course of his employment with the Defendant.

[16] In cross-examination, the Plaintiff was challenged about the extent to which sales activities were part of his overall work time and the number of his customers. The Plaintiff was candid about the fact that his sales and commissions declined over the course of his time in the position. He suggested that was due to a general downturn in sales because prospective customers were opting to go to other markets and deal with other vendors whose prices were lower than those of the Defendant. The Plaintiff also pointed to a change in company policy, which precluded the Plaintiff from attending trade shows or making cold calls. There can be no doubt though that working in the area of sales was a not insignificant part of the Plaintiff’s employment responsibilities throughout his time as a Fisher Tech sales and service technician.

[17] Much time was spent by both the Plaintiff and the plant manager, Mr. Douglas Montgomery, describing the Plaintiff’s refurbishment of one of the plant machines in 2014-2015. The Plaintiff agreed that this work took place on the shop floor rather than in the clean workspace and explained that the reason for doing the work on the shop floor was because the task required use of the plant’s overhead crane due to the size of the machine in question. While the Plaintiff was initially assigned the task of refurbishing a second machine, he was eventually taken off that job. These were the only occasions involving any kind of regular or protracted work on the shop floor by the Plaintiff during the time he was sales and service technician.

[18] The Plaintiff was also cross-examined at length about a number of features in his 2010 job description including the phrase “other duties as assigned”. The Plaintiff agreed that pursuant to that clause there were a few instances where he would go and assist the Maintenance Department deal with the machinery and equipment; however, the Plaintiff testified that was an infrequent occurrence. When questioned about his relationship with the employees in the Maintenance Department, being those individuals who were responsible for the daily care and maintenance of the plant machinery, the Plaintiff agreed that support for maintenance was part of his job description at the time. His contact with the Maintenance Department people was generally limited to the occasions when they had problems with the machines which they could not solve themselves. The Plaintiff disagreed with any suggestion that he worked with the Maintenance Department on a regular basis.

(B) Events of January 2017

(i) Evidence of the Plaintiff

[19] The Plaintiff testified that on Friday, January 6, 2017 he was summoned to a meeting with the plant manager, Mr. Doug Montgomery, and the plant’s human resources specialist, Ms. Jennifer McKeiver, and his immediate superior, Mr. Singh. At that time, the Plaintiff was advised by the plant manager that sales were off and that he would be given a new position refurbishing the zinc die-cast equipment on the plant floor. The Plaintiff initially said he would be interested in such work as it was work he enjoyed, and he saw it as other work he could do when the machine builds he was responsible for were down. He enjoyed the rebuild projects and felt he could do that work while he continued dealing with his customers. At some point in the meeting Mr. Montgomery advised the Plaintiff that he would be obliged to transfer his customers and his office to a co-worker and that he would be giving up his sales and service responsibilities as well as his office and the clean build area. The Plaintiff was given a work plan for 2017 prepared by Mr. Montgomery, which showed that out of his total annual work time of 2000 hours, approximately 1,490 hours would be spent doing machine and equipment refurbishment on the plant floor with the remaining 510 annual work hours would be spent doing something called “miscellaneous”. He was also advised that while his compensation would remain at the same level he would no longer be eligible for commissions. Rather, a bonus structure had been set up predicated on the Plaintiff completing various refurbishment tasks in certain assigned times. The Plaintiff told Mr. Montgomery that the bonus structure was not attainable as it did not allow for sufficient time to complete the refurbishments. In the Plaintiff’s experience each machine took approximately 760 work hours to refurbish as opposed to the 240-hour figure determined by Mr. Montgomery in the workplan. The Plaintiff also testified that the bonus document in the work plan proffered by Mr. Montgomery dealt with different machines than those that were the subject of the initial discussion at the outset of the meeting in question. The loss of the commission income was a substantial reduction in the Plaintiff’s annual compensation, the Plaintiff having received commission income of $9,867.97 in 2015 and $8,789.38 in 2016. The Plaintiff also testified that to his knowledge no one else in the company was paid a bonus for completing a job within expected timelines.

[20] At the end of the meeting on January 6^th, the Plaintiff testified that Mr. Montgomery and Ms. McKeiver provided him with a written job offer which they encouraged him to sign. The offer consisted of a document entitled “Position Profile”, which enumerated the key job functions of the new position. Four main tasks were listed and described: (1) to refurbish Fisher cast machines efficiently and effectively; (2) to troubleshoot and repair Fisher cast machine assemblies; (3) to provide prompt, courteous professional technical service and training to internal colleagues; and (4) to provide general housekeeping, preventative maintenance and miscellaneous activities as required. The Plaintiff advised the meeting participants that he would think about the proposal over the weekend.

[21] The Plaintiff testified that after reviewing the proposal he became quite upset and angry because what was in the job description was not what he was given to understand the new job was going to be when it was initially explained to him at the outset of the meeting. The Plaintiff felt that the job description was a maintenance type of position, particularly in view of the fact that the position purpose section of the document read as follows: “This position exists in order to effectively and efficiently refurbish Fisher cast machines and equipment at Dynacast Ltd., Peterborough, ensuring equipment is MAINTAINED in optimum operable condition at all times to support improved uptime and consistent high quality casting production to customer specifications” (emphasis added). The Plaintiff was of the view that this description effectively describes what the Maintenance Department staff do each day. The Plaintiff was also of the view that this type of work activity was bargaining unit work; a view he felt was confirmed by the fact that the signature section of the job offer/position profile included a spot for a union representative to sign and a text path at the bottom of the letter, which included the letters “BU”, commonly understood to represent the words “Bargaining Unit”.

[22] When contacted by the Plaintiff, Ms. McKeiver denied the new job was a bargaining unit job and advised that the Union signature line was simply a mistake. The Plaintiff told her he thought it was effectively a maintenance position and it was not a job he wanted to take. He advised that he was happy in his then current role.

[23] The following Monday, January 9, 2017 the Plaintiff met with Ms. McKeiver and reiterated that he did not want to take the new job as he was not interested in working in a maintenance role. Ms. McKeiver said the proposal would remain open for discussion. The Plaintiff asked Ms. McKeiver if he would be terminated if he did not take the job. She told him that not taking the job would be seen as his resignation.

[24] Later that same day the Plaintiff had further discussions with Mr. Montgomery in the course of which he conveyed his concerns about the bonus structure and about the new position being a maintenance position. The Plaintiff testified that Montgomery responded by saying that the Plaintiff “does not dictate what Dynacast will do, Dynacast dictates what you will do.” The Plaintiff was told by Montgomery that there would be no negotiating, that the Defendant needed him to fill the proposed position and that would be that.

[25] On Friday, January 13, 2017 the Plaintiff was called to meet once again with Mr. Montgomery and Ms. McKeiver. At that time Mr. Montgomery told the Plaintiff that the Defendant had done its due diligence, which I took to mean it had sought legal advice, and that he hoped the Plaintiff would accept the position. The Plaintiff was supplied with a letter on company letterhead dated January 13, 2017 signed by Mr. Montgomery, found at Tab 17, Exhibit 1, advising him that the company did not agree with his assessment that the job was a maintenance role and advising him that the company expects that he “reasonably will accept this alternative assignment as a continuation of your employment, or at the very least as per your mitigation obligations under law.” The letter also said that the Plaintiff’s reassignment would commence the following Monday, January 16, 2017 at 9 a.m.

[26] It should be noted that the Plaintiff testified that when he accepted the sales and service technician position in 2010 the maintenance component of his previous position with the company was removed from his new job responsibilities meaning he was no longer expected or required to perform in a maintenance function.

[27] On January 17, 2017, the Plaintiff again advised Ms. McKeiver that he was not interested in the new position, that he liked the work that he was doing and that he continued to believe that the new job was a maintenance position with a very unattractive bonus offer. At Ms. McKeiver’s, request the Plaintiff confirmed his decision to decline the new position in writing. The Plaintiff subsequently received an email from plant manager Montgomery dated January 20, 2017 advising him that if he did not report to work the following Monday and start performing the full duties and responsibilities of the re-assignment, he would be considered to have terminated his employment. The following Sunday, the Plaintiff sent an email to the plant manager indicating he was attempting to contact a labour lawyer for advice. Two days later, on Tuesday, January 24, 2017, the Plaintiff advised the plant manager by email that he had consulted a lawyer and advised that he would be removing his tools and personal effects from the plant later that week. The Plaintiff’s employment with the Defendant ended at the point.

(ii) Evidence of the Plant Manager re: Events of January 2017

[28] The plant manager, Mr. Montgomery, spent two days on the stand. He echoed the comments of the other witnesses about the Plaintiff’s skills and abilities. He told the court that his concern about declining sales dated from 2013, a concern he repeatedly expressed throughout his testimony. He testified about his desire to put in place a plan which would utilize the Plaintiff’s skills more effectively, albeit in his words, “on the floor”, and about his decision to “realign” the Plaintiff’s role. He testified that the financial statements he was dealing with at the time suggested that machine sales were declining but there was growth on the casting side of the business. He told the court that he wanted very much to keep the Plaintiff on as his skill set and wealth of experience were a rare combination which he did not think he would be able to replace. He made his decision to affect the changes he contemplated at the end of 2016. He told the court that he deferred making the changes as long as he could but because the “sales were not there he financially had to make a business decision”.

[29] Mr. Montgomery testified that he instructed Ms. McKeiver to prepare a new job description to provide the Plaintiff at their meeting of January 3, 2017. He considered it a draft because he wanted to review it with the Plaintiff and get his written feedback. He claimed he was willing to work with the Plaintiff and that he was “leaving it open to him to interpret the proposal and get back to us.” Mr. Montgomery asserted that the matter was open for negotiation and that he was looking for the Plaintiff’s feedback in writing. This notion of the need for the Defendant to hear from the Plaintiff in writing was repeated often through the course of Mr. Montgomery’s testimony to the point that it started to sound like a mantra. He testified that the letter of January 13, 2017 was prepared with a view toward trying to move things forward in the absence of any input or response from the Plaintiff. He insisted that the only change to the Plaintiff’s work responsibilities was with respect to withdrawal of the sales component. He was upset by the fact that the Plaintiff did not appear to be responding to their proposal or seeking an opportunity to sit down to discuss things. Montgomery said that his January 20, 2017 email to the Plaintiff, wherein he advised that failure by the Plaintiff to report for work on Monday, January 23, 2017 in his new role would be considered be a termination of his employment, was actually an attempt on Montgomery’s part to get the Plaintiff “back to the table”. He also testified that when he heard that the Plaintiff was seeking legal advice, he concluded the Plaintiff would not be back.

[30] I find the evidence of Mr. Montgomery unreliable for the following reasons;

1. Mr. Montgomery testified that he was frustrated by the length of time it took for the Plaintiff to refurbish the machine in 2014-2015, the Plaintiff having exceeded Mr. Montgomery’s time estimate for the job by some 400 hours, the equivalent of 10 weeks full-time work, yet Mr. Montgomery did nothing to document this problem or communicate his displeasure to the Plaintiff. This is a rather surprising omission by the manager of a company facility with approximately 140 employees.

2. Mr. Montgomery claimed the Plaintiff would create distractions to get him away from work that he did not want to do but again, Mr. Montgomery did nothing to address or document the problem.

3. Mr. Montgomery asserted that he spent most of January 2017 waiting for feedback from the Plaintiff on the new job description. When Plaintiff’s counsel pointed out to him that the Plaintiff had conveyed to him his concerns about the new job being a maintenance position, his concerns about the bonus being unattainable and the fact that he didn’t want the job, Mr. Montgomery conceded that was in fact feedback. He then went on to assert that in point of fact he had been looking for “written” feedback. He agreed with the suggestion that the effective negotiation window supplied to the Plaintiff, after 34 years of employment with the company, was the time between the late afternoon of Friday, January 13, 2017 and the early morning of Monday, January 16, 2017, only two and one-half days.

4. Mr. Montgomery repeatedly asserted that he had been thinking about making these changes for approximately two years; that he needed to make the changes contemplated as soon as possible; that it needed to be done at the beginning of the year and that he couldn’t wait any longer. He acknowledged that there was nothing in any of his communications to the Plaintiff at the time explaining his desire to have feedback in writing nor did he explain in any of his communications with the Plaintiff his desire to continue negotiating the issue. When pressed on the subject by Plaintiff’s counsel Mr. Montgomery ruefully agreed with the suggestion that he could have given the Plaintiff more time to reflect on the matter, thereby contradicting himself about the urgency of the matter.

5. Mr. Montgomery denied the suggestion that he helped Ms. McKeiver draft the new job description but when pressed by counsel, admitted that he had discussed the various duties in the draft job description with Ms. McKeiver. When counsel pointed out the obvious inconsistency Mr. Montgomery said simply, “Okay, my bad.”

6. When confronted by counsel with the text path, which contained the letters “BU”, commonly understood by those in unionized workplaces to stand for “bargaining unit”, Mr. Montgomery asserted that those initials could just as easily stand for something else such as “business unit”, an odd assertion coming from a man whose daily work responsibilities include managing over 100 unionized employees who are collectively referred to as the “Bargaining Unit”.

7. Mr. Montgomery’s continuous assertion that his decisions in this matter were driven by sales declines was directly contradicted by a document entitled, “2016 Peterborough Budget Presentation” found at Tab 65 of Exhibit 1. That document was prepared by Mr. Montgomery himself and shows that in 2015 the Fisher Tech division of Dynacast Ltd. enjoyed “overall steady, minimal growth” with sales of $3 million as opposed to $2.8 million in the previous year. Mr. Montgomery also agreed with counsel’s assertion that the budget presentation materials showed machine and tool sales being significantly higher in 2015 than they were in 2014 and rose even higher in 2016, which meant the situation was in fact not urgent after all. Mr. Montgomery’s assertions of a sales decline are completely inconsistent with his own evidence to the contrary as set out in the budget document that he himself prepared.

8. When confronted with the fact that the last bullet point in the 2015 Machines Year to Date section of the budget presentation he prepared showed seven machines being sold that year, five of which were shown as having been sold in the Plaintiff’s territory, while the Dynacast Ltd. record of sales by the Plaintiff for 2012-2017, prepared by the company and found at Tab 33 of Exhibit 2, showed only one machine having been sold by the Plaintiff; Mr. Montgomery responded by saying, “My numbers may be off.” Given Mr. Montgomery’s frequently expressed concerns about a sales decline, which he claimed motivated his decision to “realign” the Plaintiff’s employment responsibilities and given the stakes for both the Plaintiff and the Defendant, that answer seemed woefully inadequate.

9. When Plaintiff’s counsel confronted Mr. Montgomery with the fact that the Plaintiff’s commission earnings in both 2015 and 2016 far exceeded his commission earnings from 2012-2013, Mr. Montgomery agreed that meant sales must have risen through that period as opposed to the sales decline he had previously asserted so often. This is another example of Mr. Montgomery contradicting himself with his own evidence.

10. Mr. Montgomery asserted that in January 2017 the Plaintiff did not tell him about his reluctance to do maintenance work yet his own letter to the Plaintiff of January 13, 2017, found at Tab 17 of Exhibit 1, specifically acknowledges the fact that the Plaintiff had told him that he was not interested in such a role. Again, another example of Mr. Montgomery contradicting himself with his own evidence

11. When confronted with the suggestion that he could have simply walked into the Plaintiff’s office to talk things through Mr. Montgomery responded that he needed to move things forward and that he was waiting for the Plaintiff to come back to the table and negotiate. When asked why he kept imposing deadlines on the Plaintiff, including a demand that the Plaintiff commence his new duties forthwith, Mr. Montgomery responded that he was simply “trying to drive the discussion.” I do not understand how an ultimatum that an employee assume new job responsibilities against his wishes can possibly be seen as an effort to drive the discussion. The two notions are completely inconsistent with one another.

12. Mr. Montgomery acknowledged having a copy of the 2010 employment contract in his file in January 2017 and that he was aware of the non-modification clause. He suggested that the requisite written agreement of the parties to the proposed changes to the existing job description, required by the terms of the non-modification clause in the 2010 contract, “would have to be done at the time of the new contract.” This is in direct contradiction to Mr. Montgomery’s own letters to the Plaintiff of January 13, 2017 and January 20, 2017 wherein he demands the Plaintiff start his new job forthwith upon penalty of termination for not doing so. This is another example of the internal inconsistencies in Mr. Montgomery’s evidence.

13. Mr. Montgomery agreed that he directed Ms. McKeiver to speak to legal counsel about this matter as he wanted to make sure “he was doing everything correct”. At no time did either Mr. Montgomery or Ms. McKeiver suggest to the Plaintiff that he might wish to seek legal advice himself.

14. When asked by Plaintiff’s counsel whether he uttered the words to the Plaintiff, “You don’t dictate to Dynacast, Dynacast dictates to you”, Mr. Montgomery answered that he could not recall. Such a statement is not, in my view, the sort of statement one typically forgets making, although it might be a statement one might be reluctant to admit having made. I do not believe Mr. Montgomery’s evidence on this point. I accept the evidence of the other witnesses on this point and I find that Mr. Montgomery did utter those words to the Plaintiff.

[31] Mr. Montgomery’s evidence was replete with self-contradictions and internal inconsistencies. He persisted in his double mantra about a sales decline and his desire for written feedback from the Plaintiff about the change in job description and would refer to one or the other or both often when trying to explain himself. He stubbornly persisted in this view of things even when confronted with facts clearly demonstrating the weakness of his position. Through the course of his two days on the stand, Mr. Montgomery generally comported himself as one might expect of a senior employee, however, he was by times both confrontational and argumentative, showed exasperation on at least one occasion and was often evasive or quibbling in his responses to counsel’s questions. In my view, all of these factors, when taken together, render Mr. Montgomery’s evidence unreliable.

(iii) Evidence of Jennifer McKeiver re: Events of January 2017

[32] Ms. McKeiver is a human resources specialist who commenced her employment with the Defendant in April 2016. She reported directly to the plant manager, Mr. Montgomery.

[33] Ms. McKeiver testified that her first involvement in this matter came in early January 2017 when Mr. Montgomery advised her that he was going to realign the employees in the Fisher Tech Division and asked her to prepare a new job description for the Plaintiff. She did this by consulting with Mr. Montgomery about other draft job descriptions and then using a template to produce the document found at Tab 14 of Exhibit 1, being a Position Profile for a job titled “Fisher Tech Project Technician”. This document has a file path across the bottom of it, which includes the words “Dynacast BU Job Description”. In an interesting echo of Mr. Montgomery’s testimony on the same point, Ms. McKeiver testified that she too thought the initials “BU” stood for “business unit”. As with Mr. Montgomery’s evidence on this point, I find it troubling that a human resources specialist working in a senior capacity at a company with over 100 unionized employees, whose own job responsibilities include negotiating a new contract with the Union every three years and handling union grievances, would quibble with the suggestion that the initials “BU” stand for “Bargaining Unit”; particularly when the document in question, which she herself drafted, contains a signature line for a union representative.

[34] Ms. McKeiver also testified that she felt that the proposed changes to the Plaintiff’s job description were in line with the work the Plaintiff was already doing and that she therefore felt that said changes were simply a “tweaking” of his role with the Defendant. In cross-examination she admitted that she actually relied upon Mr. Montgomery for information about this Plaintiff’s daily activities and that she was unable to supply any details about the nature and extent of the Plaintiff’s role particularly regarding his sales activities. When asked about the nature and extent of the Plaintiff’s machine refurbishment activities she could only say that “he was doing some”. She agreed with counsel’s suggestion that if the Plaintiff was not doing refurbishing work in 2016 then the new job description would not be a “minor tweak”. Ms. McKeiver maintained this view of the changes to the job description even after being confronted with the fact that the new position profile classified 25 percent of the Plaintiff’s new work under the heading “miscellaneous”.

[35] Ms. McKeiver’s notes about the events of January 2017 were produced. She agreed with counsel’s suggestion that note keeping was an important task for a human resources specialist involved with her immediate boss in negotiations with an employee about realignment of his work activities. She agreed that it was important that such notes be taken contemporaneously with events but could not explain why it was she did not start taking notes about this matter until after the second meeting between the Plaintiff and his employer on January 17, 2017.

[36] Ms. McKeiver testified that she was aware of the 2010 contract of employment signed by both the company and the Plaintiff, that she knew it was a valid contract binding on both parties and that any changes to that contract had to be made in writing and signed by both parties. She also agreed that she reviewed the contract with Plant Manager Montgomery in January 2017 and acknowledged that she was aware any breach of that contract could lead to a wrongful dismissal lawsuit.

[37] Ms. McKeiver echoed Mr. Montgomery’s evidence about the fact that they were looking for written feedback from the Plaintiff regarding the proposed changes to his job description and that they were frustrated about the fact that they were not receiving such written feedback. When confronted with her own handwritten notes, found at page 3 of Tab 16 of Exhibit 1, which set out the Plaintiff’s comments about it being a maintenance position and that the bonus was unattainable, she agreed that constituted feedback but asserted that it was “not the kind we were looking for.” She said those comments were “not constructive”. In response to counsel’s suggestion that she could simply have asked the Plaintiff about his concerns, she responded that in her view the problem was the fact the Plaintiff did not want a maintenance position, which in her view was “not helpful and did not really tell them anything.” This question was put to her in a number of ways by counsel to which she offered various responses including, “because he wasn’t prepared to work with us” and “he was not giving us specific details”. She also claimed that she did ask the Plaintiff on at least one occasion about his concerns about the bonus being unattainable, however, when pressed by counsel she could not remember the Plaintiff’s response.

[38] Ms. McKeiver agreed with counsel’s suggestion that the Plaintiff believed the new position was a bargaining unit position and that he had shared that belief with her. She also agreed that from the Plaintiff’s perspective such a change would mean a loss of prestige and embarrassment. She testified that the proposed changes to the Plaintiff’s job description were being done with a view toward having his job description more properly match and reflect the duties he was performing at the time. She said those duties included refurbishing machines, as well as sales and service. When asked by counsel why then the 2010 job description did not include reference to rebuilding/refurbishing machinery she became flustered, took a long moment to peruse the document and then said, “So, I’ll just… You say refurbishment is not here, that’s correct but the Plaintiff was doing them in the plant in 2017. There is technical language in here, so I don’t think it’s a stretch.” She ultimately agreed that the words “refurbish” and “rebuild” do not appear anywhere in the 2010 job description.

[39] Ms. McKeiver, like Mr. Montgomery, could not actually recall whether Mr. Montgomery had uttered comments to the effect that the Plaintiff “does not dictate to Dynacast, Dynacast dictates to you”; however, she did say that it was possible. She also agreed with counsel’s suggestion that the Defendant’s letter to the Plaintiff dated January 13, 2017 amounted to a unilateral imposition of the change in his job description and further, that it was an example of the Defendant “dictating” to the Plaintiff.

[40] I found Ms. McKeiver’s evidence to be troubling. She has clearly been influenced considerably in her view of events by her superior, Mr. Montgomery, who I note was sitting at the counsel table throughout her testimony. In my view, Ms. McKeiver did whatever her employer told her to do throughout the so-called “realignment process”. She apparently did not raise any concerns she may have had about issues such as whether the Defendant’s chosen course of action could be in breach of the 2010 employment contract, the consequences such a breach might have for the Defendant and further, whether or not the new job description she was preparing truly did accurately reflect the Plaintiff’s then current work activities. In my view, these are examples of some of the concerns Ms. McKeiver ought to have had in the circumstances, particularly given her responsibilities as a senior member of the Defendant’s management team with responsibility for human resources issues. In cross-examination, Plaintiff’s counsel suggested to her that she owed her employment to Mr. Montgomery and that she would do anything to help the company and to keep her job. Ms. McKeiver responded that she was not sure what counsel meant by those suggestions, which I thought disingenuous as counsel’s meaning was quite clear. To be sure, Ms. McKeiver is herself an employee of the Defendant and as such is expected to comport and accord herself with her employer’s expectations and requirements while in the workplace. She is decidedly not expected to do so in the course of her testimony in a courtroom. I found Ms. McKeiver’s evidence to be heavily biased in favour of her employer, the Defendant herein.

[41] Ms. McKeiver’s evidence about the contents of the new job description, and about it being an accurate reflection of the Plaintiff’s then daily routine, is totally inconsistent with the other evidence in this case. Her description of those changes as being just a “minor tweak” is in my view a wholly inappropriate mischaracterization of what can only be described as a fundamental alteration of the Plaintiff’s daily work routine. Her characterization of the Plaintiff’s concerns about the changes as being “not constructive” or “not what we were looking for” are self-serving. The paucity of her notes, which she did not start taking until halfway through this process, suggest that she was not fully alive to the significance of this matter to either her employer or it’s then employee. These factors, coupled with my concerns about Ms. McKeiver’s bias, render her evidence unreliable.

(iv) Other witnesses

[42] Aileen Doris was called by the Defendants to give evidence about the “How’s and Why’s” of the Plaintiff’s 2010 contract of employment. Her evidence was not challenged by Plaintiff’s counsel.

[43] Mr. Craig Fitzpatrick was also called by the Defence. He gave evidence about the annual revenues of both Fisher Tech and Dynacast Ltd. in 2014 through 2016. He testified that Fisher Tech’s business was static and while its revenues climbed slightly, its machine sales declined. He also testified that Dynacast Ltd. revenues rose from the level of $32 million in 2014 to $37 million in 2016. His evidence was unchallenged.

ANALYSIS

Issue 1 (a): Was the Plaintiff Constructively Dismissed by the Defendant?

[44] The leading case on constructive dismissal is Potter v. New Brunswick Legal Aid Services Commission, [2015] 1 SCR. In that case, Wagner, J., as he then was, reviewed the doctrine of constructive dismissal and set out a two-pronged test for determining if an employer’s conduct demonstrated an intention to no longer be bound by the employment contract in question. The first stage involves a consideration of whether the employer’s unilateral change constitutes a breach of the employment contract. If it is found to be so then the second stage involves a consideration of whether the employer’s ongoing conduct demonstrates an intention to no longer be bound by the employment contract;

[38] This first step of the analysis involves a distinct inquiry from the one that must be carried out to determine whether the breach is substantial, although the two have often been conflated by courts in the constructive dismissal context. Gonthier J. conducted this inquiry in Farber, in which an employee had been offered a new position that was found to constitute a demotion. He stated that “the issue of whether there has been a demotion must be determined objectively by comparing the positions in question and their attributes”: Farber, at para. 46.

[39] Once it has been objectively established that a breach has occurred, the court must turn to the second step of the analysis and ask whether, “at the time the [breach occurred], a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed” (Farber, at para. 26). A breach that is minor in that it could not be perceived as having substantially changed an essential term of the contract does not amount to constructive dismissal.

[40] The kinds of changes that meet these criteria will depend on the facts of the case being considered, so “one cannot generalize”: Sproat, at p. 5-6.5. In each case, determining whether an employee has been constructively dismissed is a “highly fact-driven exercise” in which the court must determine whether the changes are reasonable and whether they are within the scope of the employee’s job description or employment contract: R. S. Echlin and J. M. Fantini, “Quitting for Good Reason: The Law of Constructive Dismissal in Canada” (2001), at pp. 4-5. Although the test for constructive dismissal does not vary depending on the nature of the alleged breach, how it is applied will nevertheless reflect the distinct factual circumstances of each claim.

[42] The second branch of the test for constructive dismissal necessarily requires a different approach. In cases in which this branch of the test applies, constructive dismissal consists of conduct that, when viewed in the light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract. The employee is not required to point to an actual specific substantial change in compensation, work assignments, or so on, that on its own constitutes a substantial breach. The focus is on whether a course of conduct pursued by the employer “evince[s] an intention no longer to be bound by the contract”: Rubel Bronze, at p. 322. A course of conduct that does evince such an intention amounts cumulatively to an actual breach. Gonthier J. said the following in this regard in Farber:

In cases of constructive dismissal, the courts in the common law provinces have applied the general principle that where one party to a contract demonstrates an intention no longer to be bound by it, that party is committing a fundamental breach of the contract that results in its termination. [para. 33]

[43] Thus, constructive dismissal can take two forms: that of a single unilateral act that breaches an essential term of the contract, or that of a series of acts that, taken together, show that the employer no longer intended to be bound by the contract. The distinction between these two forms of constructive dismissal was clearly expressed by Lord Denning M.R. in a leading English case, Western Excavating (ECC) Ltd. v. Sharp, [1978] 1 All E.R. 713 (C.A.). First of all, an employer’s conduct may amount to constructive dismissal if it “shows that [he] no longer intends to be bound by one or more of the essential terms of the contract”: p. 717. But the employer’s conduct may also amount to constructive dismissal if it constitutes “a significant breach going to the root of the contract of employment”: ibid. In either case, the employer’s perceived intention no longer to be bound by the contract is taken to give rise to a breach.

[45] The Plaintiff submits that when the Defendant employer ended his role as sales and service technician and unilaterally reassigned him to the job of project technician the Defendant employer substantially altered the essential terms of his employment contract such as to amount to a breach of contract and that he was therefore constructively dismissed.

[46] The Defendant argues that there was no unilateral breach as a result of which the second step of the first prong of the Potter test need not be considered. The Defendant also argues that the Plaintiff would, in any event, fail at the second step of the test as well based on a number of factors including the defence submission that the 2017 job description was a draft that the Plaintiff was not forced to accept; that there was no significant alteration in compensation or benefits; that an employer has the right if it sees fit to do so to make a reasonable reassignment of an employee to other duties; and further, the fact that the Plaintiff admitted that he believed the Defendant wanted him to stay in its employ.

[47] The contract of employment between the parties dated April 6, 2010 included a non-modification provision that reads as follows: “Any modification to this letter of appointment must be in writing and signed by the parties to it.” There can be no doubt that when the Defendant employer advised the Plaintiff by way of letter dated January 13, 2017 that his reassignment would commence the following Monday, notwithstanding the Plaintiff’s express objections, the Defendant company unilaterally breached the non-modification clause of its 2010 contract with the Plaintiff.

[48] As the court held in Potter, the next step is to ask, “whether a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed”, or, “whether the breach in question was minor and could not be perceived as having substantially changed an essential term of the contract?” A comparison of a number of key points in the two job descriptions is instructive in this regard:

1. The sales and service technician position was a customer-oriented sales and technical job. The position included responsibility for a sales territory including Asia, Mexico, Canada and the United States. It also gave the Plaintiff a primary workplace including an office and a clean build facility for use by the Plaintiff. The only significant deviation from this work occurred in 2014 when the Plaintiff spent a considerable length of time rebuilding a C-13 machine although I note that the evidence shows that a special enhanced work area was prepared for this purpose on the shop floor because the machine in question was a large one which could not be accommodated in the clean build area and work on this particular machine required use of the plant’s overhead crane. In contrast, the proposed project technician position required the Plaintiff to return to full-time work on the floor of the plant where he would be spending all of his time either refurbishing machinery or performing maintenance work pursuant to the provisions of the Position Profile.

2. The job description for the sales and service technician position included the following:

a. Reviewing/diagnosing customer’s needs for equipment;

b. Refurbishing/rebuilding customers’ existing parts and machines;

c. Selling and ordering new parts either as retrofit or replacement;

d. Designing engineering upgrades to Dainik plant equipment;

e. Visiting customers plants or representative locations for commissioning, technical service/consultation/troubleshooting, training or sales;

f. Attendance at promotional advance (tradeshows) as directed;

g. Chairing Customer Project Review meetings;

h. Chairing Engineering Design and Manufacturing meetings.

3. In contrast the job description for the project technician position set out in the 2017 draft position profile included the following:

a. To refurbish Fisher cast machines;

b. To build/rebuild bar feeders and ingot loaders;

c. To troubleshoot and repair Fisher cast machine assemblies;

d. To provide prompt, courteous, professional technical service and training to internal colleagues;

e. To provide general housekeeping, preventative maintenance and miscellaneous activities as required.

4. The sales and service technician job was a salaried non-union job. In contrast, the evidence of both the Plaintiff and of Mr. Ireland on this point, which I accept, was that a significant portion of the project technician job potentially involved bargaining unit work.

5. The majority of the sales and service technician work activity was spent in the Plaintiff’s office doing sales and related administrative work as well as building machines in the clean build area. Only about five percent of his time was spent on the plant floor consulting on how to fix problems with the machines with bargaining unit employees performing any repair work necessary to those machines. In contrast, the project technician job involved rebuilding machines and maintenance work with 100 percent of the Plaintiff’s time being spent in the physically challenging environment of the plant floor where protective clothing and equipment was required to be worn at all times.

6. In his sales and service technician job, the Plaintiff had an office for sales-related calls and administration purposes. He built the machines he was required to build for the company’s customers in a clean build area in an air-conditioned, quiet, well-lit area of the plant that is separate from the plant floor. He was able to dress in business casual clothing for this position.

7. In his sales and service technician position the Plaintiff was paid a commission for his sales, being five percent on replacement parts sales and three percent for new custom-built machine sales. In the project technician’s job, the Plaintiff would have received the same salary however, rather than commission-based compensation there would have been a bonus based on performance time targets. The Plaintiff believed that the performance targets were unattainable, a view he shared with his employer. In 2015 and 2016, the Plaintiff’s annual commission income topped up his salary by approximately 10-15 percent each year, income that would have been lost to the Plaintiff in the new project technician position.

8. The duties in the project technician position profile included an estimated 510 work hours annually and 25 percent of the Plaintiff’s annual work load in something called “miscellaneous”. The only witness who could describe what this meant was the Plaintiff who indicated that in his view this would be performing maintenance work on the plant floor.

[49] In my view the seven items enumerated above, which is not offered as an exhaustive list, would cause a reasonable person in the same situation as the Plaintiff to feel that the essential terms of the employment contract were being substantially changed. These changes simply cannot be described as a “minor tweak”. In my opinion, these changes were not reasonable and were not in any way within the scope of the contract of employment between the Plaintiff and the Defendant in effect at the time these changes were made. A reasonable person in the Plaintiff’s situation would undoubtedly believe that his employment opportunities and his future with the Defendant had been significantly limited by these changes, and the circumstances in which they were imposed. The Plaintiff’s resulting loss of faith in his employer is both understandable and justifiable. I have no difficulty concluding on the evidence before me that on the balance of probabilities, the Plaintiff was constructively dismissed by the Defendant from his position as sales and service technician.

Issue 1(b): What is the Reasonable Notice of Termination that the Plaintiff should have Received?

(i) Is the Plaintiff’s notice entitlement limited to minimum notice under the Employment Standards Act?

[50] The 2010 employment contract between the Plaintiff and the Defendant contains a termination clause, clause 4 (ii), which reads as follows: “If your employment is terminated without cause, by providing you remuneration as in accordance with the Employment Standards Act.”

[51] The issue is whether the termination clause is unenforceable because it contravenes the Employment Standards Act. The Ontario Court of Appeal addressed this issue in the case of Wood v. Fred Deeley Imports Limited, 2017 ONCA 158 and provided a helpful list of principles to be considered when interpreting termination clauses in employment contracts at paragraph 28:

[28] The importance of employment and the vulnerability of employees when their employment is terminated give rise to a number of considerations relevant to the interpretation and enforceability of a termination clause:

• When employment agreements are made, usually employees have less bargaining power than employers. Employees rarely have enough information or leverage to bargain with employers on an equal footing: Machtinger, p. 1003

• Many employees are likely unfamiliar with the employment standards in the ESA and the obligations the statute imposes on employers. These employees may not seek to challenge unlawful termination clauses: Machtinger, p. 1003

• The ESA is remedial legislation, intended to protect the interests of employees. Courts should thus favour an interpretation of the ESA that “encourages employers to comply with the minimum requirements of the Act” and “extends its protections to as many employees as possible”, over an interpretation that does not do so: Machtinger, p. 1003.

• Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. If the only consequence employers suffer for drafting a termination clause that fails to comply with the ESA is an order that they comply, then they will have little or no incentive to draft a lawful termination clause at the beginning of the employment relationship: Machtinger, p. 1004.

• A termination clause will rebut the presumption of reasonable notice only if its wording is clear. Employees should know at the beginning of their employment what their entitlement will be at the end of their employment: Machtinger, p. 998.

• Faced with a termination clause that could reasonably be interpreted in more than one way, courts should prefer the interpretation that gives the greater benefit to the employee: Ceccol v. Ontario Gymnastics Federation (2001), 8589 (ON CA), 149 O.A.C. 315, Family Counselling Centre of Sault Ste. Marie and District (2001), 4698 (ON CA), 151 O.A.C. 35.

[52] The Ontario Superior Court of Justice Divisional Court also addressed this matter in the case of Movati Athletic (Group) Inc. v. Bergeron, [2018] O.J. No. 6406. At paragraph 24 of that decision the court set out eight steps to be followed in determining whether a contractual provision can rebut common-law notice. They are as follows:

[24] The steps to be followed in determining whether a contractual provision can rebut common law notice are as follows:

1. All contractual provisions must meet the minimum notice requirements for termination without cause set out in the ESA: Machtinger v. HOJ Industries Ltd., 102 (SCC), [1992] 1 S.C.R. 986, [1992] S.C.J. No. 41, at p. 998;

2. There is a presumption that an employee is entitled to common law notice upon termination of employment without cause;

3. Provided minimum legislative requirements are met, an employer can enter into an agreement to contract out of the provision for reasonable notice at common law upon termination without cause: Nemeth v. Hatch Ltd., 2018 ONCA 7, 287 A.C.W.S. (3d) 291 (Ont. C.A.) at para. 11 citing Machtingerat pp. 1004-1005;

4. The presumption that an employee is entitled to reasonable notice at common law may be rebutted if the contract specifies some other period of notice as long as that other notice period meets or exceeds the minimum requirements in the ESA: Machtinger supra, at p. 998;

5. The intention to rebut the right to reasonable notice at common law “must be clearly and unambiguously expressed in the contractual language used by the parties”: Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, 134 O.R. (3d) 481, at para. 40;

6. The need for clarity does not mean a specific phrase or particular formula must be used or require the contract to state that “the parties have agreed to limit an employee’s common law rights on termination”. The wording must however, be “readily gleaned” from the language agreed to by the parties: Nemeth at para. 9;

7. Any ambiguity will be resolved in favour of the employee and against the employer who drafted the termination clause in accordance with the principle of contra proferentum: Miller v. A.B.M. Canada Inc., 1566, 27 C.C.E.L. (4th) 190, at para. 15 (Div. Ct.); Ceccol v. Ontario Gymnastic Federation (2001), 8589 (ON CA), 55 O.R. (3d) 614 (C.A.), at para. 45; and

8. Surrounding circumstances may be considered when interpreting the terms of a contract but they must never be allowed to overwhelm the words of the agreement itself: Sattva at para. 57.

[53] In this case there is no limiting language specifying that in the event of termination the Plaintiff could only be entitled to the Employment Standards Act minimums. In the recent case of Nemeth v. Hatch Ltd., 2018 ONCA 7, the Ontario Court of Appeal held, at paragraph 12, that in drafting such clauses, “A high degree of clarity is required and any ambiguity will be resolved in favour of the employee and against the employer who drafted the termination clause in accordance with the principle of Contra Proferentum.” The court also observed at paragraph 13 that “if employers do not make clear the parties’ intention to displace common-law notice, they cannot complain if the fruits of their drafting are found to be ambiguous and unenforceable.”

[54] Given these authorities, I find that the clause in question does not disentitle the Plaintiff from receiving notice under common-law.

Issue 2: What is the Appropriate Common-Law Notice Entitlement?

[55] I recognize that determining an appropriate period of reasonable notice is a case-specific exercise and that each case must be adjudicated on its own particular facts. That said, previously decided cases with similar circumstances serve as guideposts worthy of consideration.

[56] Counsel have supplied me with an assortment of authorities regarding the question of the appropriate common-law notice period. Both parties have referred me to the recent decision of the Ontario Court of Appeal in the case of Dawe v. the Equitable Life Insurance Company of Canada, 2019 ONCA 312, where the court held that exceptional circumstances will be required in order to support a notice period longer than 24 months.

[57] The Plaintiff offers the case of Bardal v. Globe and Mail Ltd., (1960) 294 (ON SC), 24 DLR (2^nd) 140, as a starting point. In that case McRuer, C.J.O., held at paragraph 21 as follows:

[21] 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 of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

[58] It is generally accepted that while there is no absolute upper limit or cap on what a long-term employee might expect in the way of notice, exceptional circumstances are required before the notice period can exceed 24 months and those exceptional circumstances must include more than a lengthy period of loyalty and dedication to the employer and the business venture. See; Lowndes v. Summit Ford Sales Ltd., 2006 24 (ONCA).

[59] I was also supplied with the decision of the Ontario Court of Appeal in Keenan v. Canac Kitchens Limited, 2016 ONCA 79. In that case the court found that the two Plaintiffs were entitled to reasonable notice of 26 months based on their average length of service of 28.5 years; the fact that they were 63 and 61 years of age at the time of termination; that they held supervisory, responsible and customer-facing positions; and further, that they had relied on the income they received from the Defendant for approximately 30 years in order to support themselves and their families. Based on those circumstances, the Court of Appeal upheld the trial judge’s finding that 26 months’ notice was reasonable.

[60] In the Dawe case referred to above, the Ontario Court of Appeal found that a 62-year-old Plaintiff with 37 years of service who had been a senior vice-president with the company, was only entitled to 24 months, not the 30 months ordered by the trial judge, relying on the decision in the Lowndes case that there were no exceptional circumstances about Mr. Dawes situation.

[61] The Plaintiff submits that I should find in this case that the no modification without agreement provision in the 2010 employment contract protected the Plaintiff from changes to the terms of his employment. In the Plaintiff’s view that fact, taken together with the Plaintiff’s stated intention to eventually retire from the sales and service technician position, makes the Defendant’s unilateral breach of that term an exceptional circumstance warranting a longer notice period, which the Plaintiff suggests should be 28 months.

[62] The Defendant submits that the Dawe case is distinguishable from the case at hand because it involved a senior VP with a high salary, a complex bonus structure and a specialized field as opposed to the Plaintiff herein, who was a technician earning only $60,000-plus per annum, who was not management and whose 34 years of service were not “nearly as long” as Mr. Dawe’s 37 years of service. I understand and recognize the generally accepted notion in employment law that senior management employees are entitled to longer notice periods than more junior staff due to the difficulties inherent in finding similar positions: see Brent Chapman v. GPM Investment Management and Integrated Asset Management Corporation, 2015 ONSC 6591. Nevertheless, both Mr. Dawe and Mr. McLean were very long-term employees, each of whom devoted their entire working careers to their respective employers, both worked hard, both were valued by their employers and both faced serious challenges finding replacement positions. In my view, both are entitled to equal application of the Bardal factors.

[63] I note that the trial decision in the Dawe case refers to the fact that there was evidence that raised serious questions about the conduct of management in that case including an allegation that Mr. Dawe was harassed for a period of years by his immediate superior, and an allegation that Mr. Dawe’s employer planned his termination for some considerable period of time. Both the Dawe case and the case at hand involve dismissal without cause. In both cases management engaged in questionable conduct. The Court of Appeal did not find that the conduct complained of in the Dawe case rose to the level of exceptional circumstances such as to merit a longer notice period. In my opinion, the management conduct complained of by the Plaintiff in this case, does rise to that level. That conduct included the unilateral breach of the governing contract of employment, the radical reconfiguration of the job description, which in my view amounted to a demotion, the mistaken or misguided rationale proffered for the changes, and the domineering attitude taken by the defendant throughout culminating in the unilateral imposition of the changes. In my opinion all of that conduct collectively amounts to exceptional circumstances. That being so, I find that the reasonable and appropriate period of notice for the Plaintiff is 28 months.

MITIGATION

[64] There are a number of sub issues to this aspect of the case including the following:

• Did the Plaintiff have an obligation to accept the full-time position on the plant floor offered by the Defendant in mitigation of his damages?

• Did the Plaintiff make sufficient efforts to find alternate employment?

• What is the impact of the Plaintiff’s decision to start a roofing business with his relatives?

I. Did the Plaintiff have an obligation to accept the full-time substitute position offered by the Defendant in mitigation of his damages?

[65] The Defendant takes the position that the decision to reassign the Plaintiff to a different job was based on business exigencies which gave rise to an inevitable and foreseeable realignment of work responsibilities at Dynacast Ltd. and that the Plaintiff was reasonably required to accept the reassignment instead of walking away.

[66] The Plaintiff, on the other hand, submits that he was not obligated to take the project technician job as it was a demotion into a bargaining unit job which involved full-time work on the plant production floor and that such a significant change would have been both humiliating and embarrassing. The Plaintiff points to the fact that he would have to give up his sales and service role, some supervisory responsibilities and his office. He also submits the new job involved a return to the plant production floor with much different working conditions, which may have been perceived by the company’s customers and its union members as evidence that the Plaintiff had done something wrong. That would mean humiliation for the Plaintiff as well as potential hostility from the other employees, particularly if they felt the Plaintiff was doing bargaining work.

[67] Both parties are ad idem that the seminal case on this issue is Evans v. Teamsters Local 31, [2008] SCC 20. In that case the court held that any consideration of an employee’s duty to mitigate must include an analysis of whether the relationship has been damaged. At paragraph 28 of the decision the court found that as a general rule, “It will be necessary for a dismissed employee to mitigate his or her damages by returning to work for the same employer.” However, the court went on to add a significant qualification to this rule at paragraph 30 where it held that an employee should only be required to serve out the notice period in the new position proffered by the employer “where there are NO barriers to re-employment” (emphasis added).

[68] The court held that an objective standard should be used, i.e.: Would a reasonable person in the employee’s position accept the alternative employment? At paragraph 30 the court referred to its decision in Red Deer College v. Michaels, 1975 15 (SCC), [1976] 2 S.C.R. 324, where it 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.” It then turned to a consideration of the decision of the British Columbia Court of Appeal in Cox v. Robertson, (1999), 1999 BCCA 640, 181 DLR (4^th) 214, which held that the relevant factors in this analysis 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; see paragraphs 12 to 18 of Cox. The court in Evans then found that these elements emphasize “the importance of a “multi-factored and contextual analysis”, and further that, “[t]he critical element is that an employee not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation and it is that factor which must be at the forefront of the inquiry into what is reasonable.” The court also held at paragraph 30 that it is extremely important that the non-tangible elements of the situation, including work atmosphere, stigma and loss of dignity, as well as the tangible elements, being the nature and conditions of employment, all be included in the evaluation. In making this finding, the court relied extensively on the decision of Farquhar v. Butler Brothers Supplies Limited, 1988 185 (BC CA), [1988] 3WWR 347, which is a guiding authority for the proposition that an employee should not be required to accept a position when hostility, embarrassment or humiliation might be caused. These, in my view, would be examples of the barriers to re-employment envisioned by the court in Evans. I am also mindful of the fact that the court in Evans referred to “NO” barriers (emphasis added), which I take to mean “none” as opposed to “one” or “some”. In my opinion, that means that as soon as any “barrier” is proven the duty of an employee to mitigate by accepting the reassignment/demotion is at an end.

[69] Some examples of the application of the rule in Evans can be found in the following cases; Morgan v. Vitran Express Canada Inc., 2013 ONSC 6385, where the Ontario Court of Appeal upheld the trial judge’s findings that refusal to accept a demotion was not failure to mitigate in circumstances where a newly created position held less prestige than the employee’s former position with the change being likely seen as a demotion by other employees which would be humiliating; Farwell v. Citair, Inc., 2014 ONCA 177, where the Ontario Court of Appeal held that in order for the company to discharge it’s onus on the duty to mitigate it was required to expressly offer the alternative position to the Plaintiff for the duration of the notice period after the employee had refused to accept the alternate position on the grounds that it amounted to constructive dismissal (that case involved work that would pay the same salary but likely resulted in reduced bonus as in this case.); Sifton v. Wheaton Pontiac Buick GMC (Nanaimo) Ltd, 210 BCSC 353, where an employee was demoted from shop foreman to technician, a position he had formally held at a lower wage. The trial judge found the working relationship had been undermined and the new job was different than the one he worked at before. The British Columbia Court of Appeal upheld those findings; Malloy v. Vipond Inc., [2005] NBJ No.149, where the employee had worked 23 years for the same company rising from sprinkler installer and technician to service manager, a promotion that moved him from the union into management. After five years the employee was removed from his service manager role and was offered a position as installer/technician at the same or better salary than as manager. While the court found no evidence of acrimony or humiliation in that case, at paragraph 27 the court held that the fact of the demotion meant that the employee “saw his worth to the company diminished even though the company wanted him to stay on and praised his past service. This made it difficult for the Plaintiff to continue his relationship at the same level of harmony.”

[70] Applying the Evans objective/tangible factors analysis to the case before me I find that the working conditions of the two positions were substantially different in that the new position meant the Plaintiff was demoted to what may well have been a bargaining unit job back on the plant floor after he had spent the previous seven years in the administrative portion of the plant working in an office and in a clean build lab. I find the remuneration offered was not the same given the shift from commissions to a bonus structure, which may well have been untenable. The Plaintiff was not a member of the Union during that period of his employment with the Defendant. In my view, being returned to the shop floor for an employee with that work history, length of service and age would have been humiliating and embarrassing. I find the working conditions and terms of employment were not clearly defined given the uncertainties about whether the work in the new position was bargaining unit work, and the fact that fully 25 percent of the Plaintiff’s worktime was defined simply as “miscellaneous” without any further explanation. The plant manager’s unfortunate, untimely and wholly inappropriate comment about who would dictate to whom is for me clear and cogent evidence that the relationship between the Plaintiff and the Defendant at the time of termination had become poisoned and acrimonious. Certainly, the offer of re-employment was made by the Defendant while the Plaintiff was still on the job and the Plaintiff had not commenced this litigation; however, the Defendant did not offer the job for the duration of the notice period and there were apparently no similar positions available elsewhere in the local employment marketplace.

[71] Turning to the subjective/intangible factors of the Evans analysis I find that there was stigma and/or loss of dignity in the new position offered by the employer. This is shown by the fact that the Plaintiff had been proud of his elevation from the factory floor to the more white-collar position and by the inescapable fact that he would have experienced a loss of prestige with a return to the shop floor including loss of his sales and service responsibilities, loss of his office space and clean build room as well as the loss of his customer interaction. The work in the new position was more onerous and would have been performed in the more hazardous plant environment. As well, by virtue of his environment and circumstances, the Plaintiff would have been confronted with what he had been obliged to give up, being the physical trappings of his previous position, through the course of each and every work day spent in the new role. Other workers at the plant would inevitably have seen the change in the Plaintiff’s position as a demotion and as evidence that he had done something wrong. This would inevitably have caused humiliation and embarrassment to the Plaintiff. I note as well the evidence of Mr. Ireland who, when asked in the course of his testimony about the various tasks outlined in the new position profile and whether they infringed upon what was properly bargaining unit work, identified eight specific items that he believed were bargaining unit work and which he believed would be the subject of successful grievances. Indeed, Mr. Ireland advised that many more of the tasks enumerated, if not most of them, would likely have been the subject of grievances by the Union. This would have been deeply humiliating, embarrassing and dispiriting for the Plaintiff.

[72] I agree with the Defendant’s position that the proper forum for the determination of whether particular work in a unionized workplace is bargaining unit work is as provided in the particular Collective Bargaining Agreement. This court does not have the jurisdiction to resolve such disputes. That said, I am of the view that this court is not precluded from considering evidence showing the potential for such disputes.

[73] In this case the Evans analysis reveals a number of factors, both tangible and intangible, which constitute “barriers to re-employment”. I find therefore that the company has not discharged its onus of showing that a reasonable person would accept the opportunity presented to the Plaintiff and would have accepted the new position. That being the case, I am unable to find on an objective basis that a reasonable person in the Plaintiff’s position would have accepted the alternative employment offered by the Defendant.

II. Did the Plaintiff make sufficient efforts to find alternate employment?

[74] The Plaintiff gave very straightforward and compelling evidence about the difficulties and challenges he encountered in the job market at the age of 58 after 34 years in the Defendant’s employ. The fact that he had lost the job he loved, a job from which he had intended to retire, emphasized the nature and scope of those difficulties and challenges. He utilized the local newspapers and online websites to find potential employers and applied for a number of jobs but received only two replies one being from a moving company the other from a call centre, neither of which could be said to be in any way equivalent to the job he had lost. He eventually contacted an employment counselling service, which he found beneficial both with respect to job searches as well as emotionally but even with that he was unable to find any jobs comparable to the one he had lost.

[75] The Plaintiff’s résumé and job search log, which cover the period between January 2017 and November 2018, were filed herein and can be found at Tab 27 of Exhibit 1. The Plaintiff accepted some work from his former supervisor, Mr. Singh, at his die-casting plant in Mexico, Contracore, which was located some three hours’ drive from Mexico City in an area prone to kidnap incidents. The Plaintiff returned home after three weeks in that position as he was uncomfortable being that far from his home and family, which is not unreasonable. The Plaintiff spent some time wiring electrical panels for a company called Quickmill where he continues to work periodically on an as-needed basis. He felt that job is not comparable to his old sales and service technician job, although I note that work does allow the Plaintiff to utilize some of his particular skills.

[76] The Defendant takes the position that the Plaintiff failed in his obligation to mitigate his damages. In the Defendant’s view that failure is proven by the fact that the Plaintiff’s job search log is only a single page, the fact that he chose not to attend a job fair for which he registered and by the fact that in two years the Plaintiff applied to “only 14 jobs”. The Defendant asserts that the Plaintiff has studiously avoided pursuing opportunities and has made no effort to improve his position. The Defendant further asserts that the Plaintiff’s job search efforts indicate a deliberate unwillingness to accept less and that the decision the Plaintiff made to spend nine months working at the Peterborough employer rewiring electrical panels on a part-time basis subverts his claim for damages. The Defendant cites the case of Kyle v. Price Business Development Corp., 2010 ONSC 3567, a decision of Roberts, J., wherein the Plaintiff called no evidence about her efforts to find work other than a general assertion that she had conducted an extensive job search without giving any particulars. The court found that in the absence of any evidence of other efforts to find work in her field, the Plaintiff’s decision to simply accept the first job for which she applied, and for which she received income of any kind, completely mitigated her damages. I do not find that case persuasive because it involved a Plaintiff who while middle-aged, nevertheless had work experience as a bookkeeper, an occupation the court found could be readily performed by people of any age. In that case, the Plaintiff did not call any evidence to show she had tried to find other work. In this case, an older Plaintiff became involved in a search for employment to replace that which he had lost when he was nearing retirement age. His age would likely diminish his appeal to employers as a prospective employee, even if he had been able to find a position that aligned with his own particular work skills.

[77] The Plaintiff points to the recent decision of the Ontario Court of Appeal in Dussault v. Imperial Oil Ltd., 2019 ONCA 448, wherein at paragraph 5 the court applied the decision in Red Deer College v. Michaels, 2 SCR 324, and held that “the employee must make reasonable efforts to seek comparable employment; and it remains the employer’s burden to prove the employer’s failure to do so.” The court also found that “comparable employment” does not mean “any employment” but comprehends employment comparable to the dismissed employees’ employment with his or her former employer in status, hours and remuneration: Carter v. 1657593 Ontario Inc., 2015 ONC 823 at para. 6.”

[78] The Plaintiff was 58 years old when he started his job search at which point his job search skills were some 34 years out of date. He was nearing retirement age at that point. He applied for some 14 jobs and engaged the services of employment counselling agency who assisted him in improving his job search skills. That agency also helped him obtain some mental health relief by educating him about the emotional stages that a person who has lost their employment experiences. He travelled to Mexico for employment and he worked part-time wiring electrical panels at a worksite near his home in Peterborough. He continues to work there on an as-needed basis. After almost two years on the job market, the Plaintiff became understandably discouraged about his lack of success in his job search. He decided to open a roofing business with the family members. I do not know what else a man in his position could reasonably have done in addition to those efforts. I am of the view that the Plaintiff did everything he reasonably could to find alternate employment and that his job search was sufficient.

III. What is the Impact of the Plaintiff’s Decision to Open a Roofing Business?

(i) Did Opening the Roofing Business Comply with the Plaintiff’s Duty to Mitigate?

[79] By November 2018, the Plaintiff had started to despair about ever finding a job through the job search process, so he decided to open a roofing business with family members. He invested $18,000 in the business and provided operational support to the company. By the start of trial in May 2019, the Plaintiff had recouped his investment; however, to that date the business had not grown to the point that he could draw a salary. All profits of the company to that point in time had been paid out in the form of salary to the other two family members who had no other source of income.

[80] The Plaintiff argues that at age 61 and after working for the Defendant for 34 years it is unlikely the Plaintiff will find comparable employment. His decision to start a new business with the son-in-law was a last resort. The Plaintiff submits his self-employment is therefore a valid effort to mitigate.

[81] The Defendant submits that the decision to start a business and not draw salary makes it clear that the Plaintiff does not intend to further mitigate his damages. The Defendant suggests that while dismissed employees are free to start a business if they are seeking damages for wrongful dismissal, they have a duty to act reasonably. The Defendant submits that the decision by Plaintiff to open the roofing company means he has deliberately not maximized his earning potential which must be counted against any alleged damages he may be entitled to.

[82] In the 2001, the decision of the Ontario Court of Appeal in Peet v. Babcock and Wilcox Industries Limited, 2001 24077 (ON CA), 53 OR (3d) 321, the respondent employee established a new consulting business following dismissal. Finlayson, J.A., of the Ontario Court of Appeal found that was clearly a means of mitigation and held that the mere fact that in the early years of that self-employment the monetary returns from the business did not live up to his early expectations did not mean that it was an unreasonable attempt at mitigation. The court went on to hold that an employee who has been terminated is entitled to consider his or her long-term interests when seeking other ways of earning a living.

[83] The Defendant points to the decision of the Alberta Court of Appeal in PCL Construction Management Inc. v. Holmes, 1994 ABCA 358, where a dismissed employee started his own company, the issue being whether he received hidden remuneration by retaining the profits in the company and paying himself only a nominal salary. The decision to start the company was made by the Plaintiff and his wife for income tax purposes and for the purpose of building up capital for investment purposes. The Plaintiff voluntarily diverted funds received for his own services to a third party. The court held that a Plaintiff is entitled to incorporate and to direct the payment of money which he earns into the company but that cannot be done at the expense of his former employer.

[84] I prefer the reasoning of the Ontario Court of Appeal in the Peet case where, as here, a newly unemployed Plaintiff trying to make ends meet got into a business venture with his family members in the hope and expectation that it would turn into something over the long term. Unlike the situation in the PCL Construction case, this is not a situation where the venture was established for tax purposes or with a view toward building up capital for investment purposes. Rather, it was done with a view toward earning a livelihood.

[85] I note as well the decision of this court in Leeming v. IBM Canada Ltd., 2015 ONSC 1447, [2015] O.J. No. 1020, a case that involved an employee who had worked for the Defendant employer for eight years by the end of which she was a senior management consultant. At the time of her dismissal she was 60 years old. Following termination, she applied to 20 different positions and showed efforts to pursue new opportunities. When these efforts proved unsuccessful, she decided to start her own business, which at the time of trial had not yet realized any profit. The Defendant in that case argued that the plaintiff should have stayed in the labour market longer. The court held at paragraph 57 that she had made “reasonable and diligent efforts to find new employment and then made a reasonable decision to become, in effect, her own employer by training herself for her new career of franchisee.” The court found that this was a reasonable decision in the circumstances and that she tested the market long enough before doing so. The court also pointed out that had the private venture proven to be a success, it would have counted as mitigation of her damage claim.

[86] The Plaintiff’s decision to open a new business was made in the same circumstances and for the same reasons as in both the Peet and Leeming cases. It was simply another direction the Plaintiff chose to take following his unsuccessful foray into the job market, it was another way to earn a livelihood and it provided the Plaintiff with some meaningful work, something he was in desperate need of at the time. I find the Plaintiff’s business startup was a legitimate mitigation effort.

(ii) Should Income from the Plaintiff’s Company be Imputed to Him?

[87] The Defendant suggests that any income from the Plaintiff’s company should be imputed to the Plaintiff and bases this position largely on the decision in PCL. The Plaintiff suggests that any income earned by the Plaintiff post-employment was earned from employment that was inferior to the Plaintiff’s sales and service technician job and should not therefore be deducted from any notice award. In support of this proposition, the Plaintiff points to the decision of the Ontario Court of Appeal in Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402, wherein the court held that any mitigation earnings from a substantially inferior job should not be deducted from an employee’s damages for wrongful dismissal. Feldman, J., reasoned that just as it would not be a failure to mitigate if a dismissed employee turned down an inferior position, so it follows that if the employee accepts an inferior position no earnings from that job should be considered as mitigation earnings for deduction from an award for wrongful dismissal. At paragraph 159 of Feldman J.’s concurring opinion she held as follows:

[159] It is always up to the trial judge to determine if the employee has met her duty to mitigate. When a wrongfully dismissed employee accepts new employment during the notice period, the question of whether or not to deduct those earnings depends on the trial judge’s assessment of mitigation. If the trial judge finds that the new job is comparable to the old one, the earnings should be deducted as mitigation of damages. If the trial judge finds that the new job is vastly inferior to the old one, such that the employee would not be in breach of the duty to mitigate if she turned it down, the earnings should not be deducted.

[160] In other words, the trial judge decides whether a job that an employee takes or turns down, amounts to mitigation of damages. As my colleague states at para. 98, only monies that are received in mitigation of the loss are deducted from the damages award.

[161] In this case, the employee was not an executive who could afford to live during the notice period without a salary. It was in her interest to try to obtain a comparable managerial position, but she was not able to do so, and because she could not afford to earn nothing, she had to take the only job she could find. The trial judge determined that the job she found was in no way comparable to her managerial position with the appellant. As a result, it did not have the effect of mitigating the damages she suffered from her wrongful dismissal by the appellant employer and should not be deducted.

[88] The evidence in this case clearly shows that most of the employment income earned by the Plaintiff herein post-separation from the Defendant, excepting that received from his employment with Quickmill and Contracore during the notice period, was earned in jobs that were clearly inferior to the position he held with the Defendant. This includes income from the Plaintiff’s new roofing company, to the extent there was any that on the evidence is by no means clear. Following and applying the decision of the Ontario Court of Appeal in Brake, I find that the income received by the Plaintiff from his employment at Quickmill and at Contracore in Mexico are amounts properly deductible from the notice award herein.

DAMAGES FOR BAD FAITH

[89] The Plaintiff urges me to consider the notion of an award of damages for bad faith on the part of the Defendant. The Defendant asserts nothing about the Defendant’s conduct herein gives rise to such an award.

[90] The Plaintiff submits that he was terminated from his sales and service technician job and assigned to the lower status duties and responsibilities of the specially created position of full-time parts technician in the hope that he would resign from his employment so the company could avoid having to provide him with reasonable notice.

[91] In support of this position, the Plaintiff directs me to certain authorities including the decision of the SCC in Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] S.C.J. No. 40, where the court held that damages resulting from the manner of dismissal are available only if the employer “engages in conduct during the course of dismissal that is unfair or is in bad faith by being for example untruthful, misleading or unduly insensitive.” The court in Honda based its opinion on its decision in the case of Wallace v. United Grain Growers Ltd. 1997 332 (SCC), [1997] 3 SCR 701.

[92] The Plaintiff also directed me to the decision of this court in Galea v. Walmart Canada Corp., 2017 ONSC 245, wherein Emery J. held as follows at paragraph 232:

[232] From the cases, I consider the following factors to summarize when moral damages may be available to a plaintiff:

1. Where an employer has breached its duty of good faith and fair dealing in the manner in which the employee was dismissed;

2. Conduct that could qualify as an employer’s breach of good faith or the failure to deal fairly in the course of a dismissal includes an employer’s conduct that is untruthful, misleading or unduly insensitive, and a failure to be candid, reasonable, honest and forthright with the employee;

3. Where it was within the reasonable contemplation of the employer that the manner of dismissal would cause the employee mental distress;

4. The wrongful conduct of an employer must cause the employee mental distress beyond the understandable distress and hurt feelings that normally accompany a dismissal; and

5. The grounds for moral damages must be assessed on a case by case basis.

[93] These authorities were considered by the court in the case of Ruston v. Keddco Mfg., (2011) Ltd. 2018 ONSC 2919. In that case, the trial judge awarded punitive damages of $100,000 based on nine specific incidents of inappropriate behaviour on the part of the Defendant employer through the course of the dismissal process. These incidents included threatening, intimidation, failure to advise the Plaintiff of particulars of the allegations of cause; reliance on performance-based grounds; an allegation which was subsequently dropped after the trial because no evidence was lead on that point; allegations of inappropriate behaviour and incompetent supervision of company funds which also proved baseless; a $1.7 million counterclaim, which was ultimately dropped and was found to have been used for intimidation purposes and allegations of fraud, all of which were entirely unfounded. The trial judge’s decision to award aggravated/moral damages was upheld by the Ontario Court of Appeal: see Ruston v. Keddco Mfg., (2011) Ltd., 2019 ONCA 125, at paragraph 13.

[94] The employer conduct complained of in this case centers on the fact that the employer was in possession of the 2010 contract and was aware of the non-modification clause throughout the events of January 2017. I have already found that the employer unilaterally breached that contract, which was originally prepared at its direction, when it insisted and required that the Plaintiff commence the new position forthwith and that failure to do so would result in the loss of his employment. In doing so, I find that the employer breached the duty of good faith and fair dealing that it owed the Plaintiff.

[95] The reason given for the change in job description was a decline in sales. As noted above, the Defendant’s own evidence does not show a decline in sales. Mr. Montgomery indicated that he had to make a “financial” decision; however, his own budget proposal information show the company was enjoying growth. In my view that was both untruthful and misleading. It was also less than candid, honest and forthright. Both Mr. Montgomery and Ms. McKeiver acknowledged in their testimony that there was no business reason that justified the pressure and time constraints placed upon the Plaintiff. That pressure was unreasonable.

[96] I am of the view that a reasonable person contemplating the overall circumstances of this case would conclude that the Plaintiff would suffer some degree of mental distress as a result of the loss of his employment and that such mental distress would be more significant by virtue of his age at the time, and his stated intention to retire from his position with the Defendant.

[97] The Plaintiff commenced a job search shortly after his departure from the Defendant’s employ and persisted in that search until November 2018, some 22 months, when he finally gave up in despair. The job search was unsuccessful. Along the way, the Plaintiff went so far as to work for three weeks in Mexico, a long way from his home and family. He worked at odd jobs throughout that period before eventually opening his own company in an attempt to provide himself with a way to earn a livelihood. He sought the advice and assistance of an employment agency both with respect to the job search process as well as the emotional impact of the situation. He described experiencing depression and anxiety throughout that period. In my view, all of that amounts to significantly more than the “understandable distress and hurt feelings that normally accompany a dismissal” as described in the Galea case. While there is no medical evidence before the court in this regard, such is not required to justify an award for moral or aggravated damages: see Galea at paragraph 270: see also Slepenkova v. Ivanov, 2009 ONCA 526.

[98] I am satisfied that while the conduct of the employer in this case does not rise to the egregious level of the employer’s conduct in the Ruston case, it does nevertheless justify an award of aggravated/moral damages for bad faith which I fix at $25,000.

BROWN v. DUNN

[99] In the course of the Defendant’s evidence in this matter Plaintiff’s counsel recorded 38 separate breaches by Defendant’s counsel of the rule in Brown v. Dunn, the particular evidence in question having not first been put to the Plaintiff’s witnesses such as to give them the opportunity to respond.

[100] The rule in Brown v. Dunn was reviewed by the Ontario Court of Appeal 2013 decision of R v. Dexter, 2013 ONCA 744. In that case the Court of Appeal set out two options for trial judges for rectifying a breach of the rule those being either to simply recall the witness who was not given the opportunity respond to the contradictory evidence or in the alternative to give less weight to the evidence underlying the breach of the rule. I opted for the second approach given both the number of alleged breaches of the rule and the fact that by the time the issue first arose the Plaintiff had closed his case and defence evidence was well underway.

[101] The concerns I have outlined above about the veracity of the evidence of the two main defence witnesses arose from their own evidence about certain significant and salient aspects of the case as opposed to their evidence on the particular points outlined in the Plaintiff’s list of the Brown v. Dunn violations. That being the case it is not necessary for me to engage in what would be a rather lengthy process of analyzing each of the alleged breaches of the rule and then weighing the evidence which flowed from those breaches.

SUMMARY

[102] I have found that the actions of the Defendant herein in significantly altering the Plaintiff’s job description, reassigning him to the plant floor and removing his sales and service responsibilities amount to constructive dismissal, particularly in view of the fact that the non-modification clause in the Plaintiff’s employment contract specifically precluded such unilateral action.

JUDGMENT

[103] I have also found that the Plaintiff is entitled to 28 months’ notice as a result of that constructive dismissal subject to a deduction from these amounts for income earned by the Plaintiff from his part-time work at Quickmill and Centracore during the notice period. There will also be an award of $25,000 in aggravated/moral damages.

[104] Judgment for the Plaintiff as follows:

1. Notice of 28 months for constructive dismissal based on the amount of $6,433.33 per month, which includes the Plaintiff’s annual salary and commissions; said amount being subject to deduction of any income earned by the Plaintiff from his employment with Quickmill, and from his employment in Mexico during the notice period, payable within 30 days.

2. An Order that the Plaintiff be made whole in regard to his participation in the Dynacast Ltd. RSP for the notice period.

3. Aggravated/moral damages in the amount of $25,000.00. payable within 30 days.

4. Pre-judgment interest from the date of the claim and post-judgment interest hereafter pursuant to the provisions of the Courts of Justice Act on all of the foregoing amounts.

[105] The parties may address me in writing about anything they cannot agree on regarding the amounts owing to the Plaintiff.

[106] The parties may also address me on the issue of costs if they are unable to resolve that question between themselves. I am prepared to accept written submissions on the matter of costs from each party, limited to three pages double-spaced, with appropriate attachments, with the Plaintiff to serve and file his materials on or before January 15, 2020 and the Defendant to file responding materials on or before January 31, 2020.

JUSTICE C.M. SMITH

Released: 20191217

Amended Release Date: December 19, 2019