ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-19-00624319-0000
DATE: 2020/09/10
BETWEEN:
Thomas George
Plaintiff/Moving Party
– and –
Laurentian Bank Securities Inc.
Defendant/Responding Party
Matthew A. Fisher, for the Plaintiff/Moving Party
Kimberly D. Pepper, for the Defendant/Responding Party
HEARD: July 7, 2020
Vella j.
REASONS FOR DECISION
[1] This is a motion for summary judgment brought by the Plaintiff in his simplified rules action claiming damages for wrongful dismissal.
[2] Both parties submitted that this matter was appropriate to proceed by way of a motion for summary judgment.
[3] I have concluded, applying the principles of Hryniak v Mauldin, 2014 SCC 7, that based on the affidavits filed there is sufficient evidence to fairly and justly adjudicate this dispute, and that a summary judgment motion is a timely, affordable and a proportionate procedure. This conclusion has been reached by many other judges in post Hyrniak summary judgment motions where the main issue to be decided is reasonable notice or pay in lieu thereof in the context of a wrongful dismissal: Beatty v Best Theratronics Ltd., 2014 ONSC 3376; Asgari v 975866 Ontario Ltd., 2015 ONSC 7508.
[4] It is presumed that each party has put its best foot forward in terms of adducing the requisite evidence for the determination of the issues raised in this motion.
[5] I have concluded that there is no genuine issue requiring a trial based on the evidence before me.
[6] I grant summary judgment to the Plaintiff, Thomas George (“Mr. George”), for the reasons that follow.
Facts
[7] It was conceded by the Defendant employer, Laurentian Bank Securities Inc. (“Laurentian Bank”), that:
(a) Mr. George was hired on November 5, 2018 pursuant to a contract of indefinite hire;
(b) Mr. George’s title was “Vice President, Equity Trading”;
(c) Mr. George’s salary (gross) was $100,000 per annum;
(d) Laurentian Bank paid $325.14 per month in benefits on behalf of Mr. George;
(e) Mr. George was eligible to participate in an Equity bonus pool if he met certain criteria;
(f) Mr. George was dismissed without cause by Laurentian Bank on March 26, 2019 at the age of 58;
(g) At the time of termination, Laurentian Bank paid Mr. George $5,769.23 which is the equivalent of three weeks’ pay in lieu of notice, plus 2.5 weeks of benefit continuation ($187.73).
[8] At the hearing of the motion, Laurentian Bank withdrew its claim that Mr. George had failed to mitigate his damages. In any event, I find that Mr. George made reasonable efforts to mitigate his damages.
[9] Unfortunately for Mr George, as at the date of the hearing of this motion, and despite numerous efforts as reflected in the record, he remained unemployed. Furthermore, at the time of the hearing of this motion, Ontario continued to be coping with the economic realities of COVID-19.
Analysis
[10] At common law, an employee who has been dismissed without just cause is entitled to reasonable notice or pay in lieu thereof.
[11] The standard factors that govern a court’s assessment of what constitutes reasonable notice at common law are derived from Bardal v. Globe and Mail, 1960 294, 24 D.L.R. 140 (ON SC) at p. 145:
(a) character of the employment;
(b) length of service of the employee
(c) age of the employee at the time of termination, and
(d) availability of similar employment having regard to the experience, training and
qualifications of the employee.
[12] In assessing reasonable notice, each case is driven by its particular set of facts. There is no static formula to be applied relative to the length of time the terminated employee was employed. Rather, the court must consider the Bardal factors within the factual matrix presented which might include, for example, whether an employee had been induced to leave other employment.
[13] Mr. George’s lawyer urged the court to find that there is a presumption at common law that senior management or executives who are wrongfully dismissed are entitled to a minimum of 12 months’ notice irrespective of the length of service. He cited Mulrooney v Terra Nova Brokers Ltd., 3970 (NL CA), Felice v. Cardinal Health Canada Inc. 2014 ONSC 1190 and Lovely v. Prestige travel Ltd., 2013 ABQB 467, for this proposition. However, in light of my findings, I need not make this determination.
[14] Based on the largely uncontested evidence, I find that Mr. George was neither a senior manager nor executive within the meaning of the caselaw for several reasons including:
(a) he did not have any role in supervising coworkers in his department;
(b) he was not responsible for the oversight or strategic decision making in his department;
(c) all employees in the Equity Trading division held the title of “Vice President, Equity Trading” in order to give the employees clout when dealing with Laurentian Bank’s institutional clients, not to denote senior management or executive positions within the bank;
(d) Mr. George was not part of Laurentian Bank’s Executive Team. Mr. George reported to the Director within the Equity Trading department and was 3 levels removed from the executive team level.
[14] Mr. George’s primary duties were to develop business, establish and manage relationships with existing and new institutional clients, and execute equity transactions and trading strategies to generate trade flow and deepen the Laurentian Bank’s reach in Canada.
[15] Mr. George placed much stock in the fact that his title, Vice President Equity Trading, was sufficient to satisfy the characterization of his position as being at the senior management or executive level. However, the title, in this case, is not sufficient in and of itself to warrant that characterization in light of what his role and responsibilities actually entailed.
Conclusion
[16] In applying the Bardal factors to the facts of this matter, I find that Mr. George’s age is a factor that warrants particular attention. At the age of 58, Mr. George’s job opportunities are less promising than for a younger person with his experience, training and qualifications, as might be suggested by his inability to obtain new employment over the past 15 months.
[17] Laurentian Bank submitted that courts, when assessing the adequacy of the notice period provided, must first determine whether or not the employer’s severance arrangements were fair and reasonable. If they were, then courts should not interfere with the result; Perry v. Gulf Minerals Ltd., [1985] O.J. No. 1041 (Ont. H.C.). However, I find that providing Mr. George with three weeks’ pay, 2.5 weeks’ continuation of benefits, and no letter of reference and/or outplacement counselling assistance (despite requests for same) was unfair and unreasonable in the circumstances of this case.
[18] Much of the caselaw relied upon by the parties is not of particular assistance to determining the reasonable length of notice in this case where the terminated employee is in his late 50’s and worked less than a year. The closest case provided to me was Asgari v. 975866 Ontario Ltd., supra. That wrongful dismissal case considered a situation in which the (younger) employee was terminated without cause after approximately 13 months employment. was awarded 3 months’ pay in lieu of notice.
[19] In applying the Bardal factors to the particular facts of this case, I find that the reasonable notice period to be 2 months.
[20] As an aside, Mr. George did not claim any damages in respect of any alleged bonus entitlement over the period of reasonable notice under the Institutional Equity bonus pool.
Calculation of Damages over the Notice Period
[21] Based on a period of 2 months’ pay in lieu of notice, and accounting for the sum already received by Mr. George via severance pay and benefits, Mr. George is entitled to:
2 X $8,333.33 per month : $16,666.66 (pay)
plus 2 X $325.14 per month: $ 650.28 (benefits)
less $ 5,956.96 (pay and benefits received)
Total Net Payable (Gross): $11,359.98
[22] Accordingly, judgment for damages is awarded to Mr. George in the sum of $11,359.98 plus pre-judgment interest and post judgment interest under the Courts of Justice Act.
[23] Counsel are to try to agree on costs of the action and motion and advise me. However, if counsel are unable to agree on costs, they are to exchange and deliver to me their respective Cost Outlines together with written submissions not to exceed 3 double spaced pages in length by no later than September 23, 2020. As part of their written submissions, I invite counsel to advise from what date pre-judgment interest should run.
[24] Counsel may submit a draft judgment to me (preferably on consent) for my consideration and signature.
The Honourable Justice S. Vella
Released: September 10, 2020
COURT FILE NO.: CV-19-00624319-0000
DATE: 2020/09/10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Thomas George
Plaintiff/Moving Party
– and –
Laurentian Bank Securities Inc.
Defendant/Responding Party
REASONS FOR JUDGMENT
Vella J.
Released: September 10, 2020