COURT FILE NO.: CV-19-00000209-000
DATE: 2020/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HAL ROTHENBERG
D. Sinko, Counsel for the Plaintiff
Plaintiff
- and -
ROGERS MEDIA INC.
T. Swann, Counsel for the Defendant
Defendant
HEARD: September 11, 2020
ENDORSEMENT
THE HONOURABLE JUSTICE R. J. NIGHTINGALE
[1] The plaintiff (“Rothenberg”) brings this motion for summary judgment to assess his damages as a result of his being wrongly dismissed from his employment by the defendant (“Rogers”) on August 14, 2018.
[2] Rogers cross-motions for an order dismissing the plaintiff’s action in its entirety.
Factual Background
[3] The essential facts are not in dispute and the parties have agreed that this case is suitable to be decided on the summary judgment motions on the only issues being the length of the notice period to Rothenberg and the alleged failure of Rothenberg to mitigate his damages.
[4] Rothenberg worked for two Tillsonburg radio stations as a news reporter and on-air broadcaster since 1998. The entirety of his working life was in the radio broadcasting industry for approximately 55 years.
[5] Rogers, with a workforce of approximately 25,000 people, purchased the company that owned those Tillsonburg radio stations in September 2017 and assumed the employment of Rothenberg.
[6] Rogers then terminated the employment of Rothenberg when he was almost 73 years old and others without cause as a part of restructuring on August 14, 2018. Rothenberg at that time had almost 20 years of employment with Rogers and its predecessor company.
[7] At the time of his termination Rothenberg earned an annual salary of $39,780.
[8] On Rothenberg’s termination, Rogers offered to pay him 53.36 weeks of salary compensation, i.e. 12.4 months of pay in lieu of notice, and required him to sign a full and final release. He was offered career counselling services to assist in finding other employment. Rothenberg did not accept the offer at which time Rogers only paid him the minimum statutory entitlement for termination pay and severance pay under the Canada Labour Code of $7,344.
[9] Rothenberg commenced this action for wrongful dismissal damages in September 2019. Shortly after being served with the statement of claim, Rogers then made a further payment to Rothenberg of $52,326 less applicable deductions and withholding tax as required by the CRA on October 18, 2019. Effectively, Rogers has paid Rothenberg compensation of 18 months salary in lieu of notice.
[10] Rothenberg did not obtain his high school diploma and does not have a college or university degree. He had no other skills or training that would allow him to seek employment in other fields. The evidence was that employers were generally not interested in hiring someone of his age, let alone for a full-time position.
[11] Rogers owns approximately fifty-one AM and FM radio stations across Canada including radio stations in London and Kitchener in southwestern Ontario.
[12] After his termination, Rothenberg reached out to his contacts in the radio industry and inquired whether they were aware of any positions for a radio news reporter/broadcaster within a reasonable commute from his home in Paris. None of his contacts were aware of any such available positions. He asked his contacts to inform them if they became aware of any available positions in the future, but none did.
[13] Rothenberg searched online for job openings as a radio news reporter/broadcaster. He found none within a reasonable commute of his home. Of the available positions he did review, all of them were a one hour or more commute each way from his home in Paris and beyond what he considered reasonable given his circumstances. Moreover, all the positions stated that post-secondary education was a requirement and not just a preference, which he did not have.
[14] Shortly after his termination, Rothenberg underwent medical tests regarding his heart and required quadruple bypass heart surgery in December 2018. Accordingly, he could not make use of the career counselling services offered by Rogers which he had planned to use and which were put on hold because of his weekly medical treatment in Cambridge for six months and upon completion of that programme his need to attend for further treatment once per month for six months.
[15] In March 2020, the economy in Ontario including Southwestern Ontario took a drastic downturn due to COVID-19 making jobs even more scarce. The number of unemployed persons campaigning for any available jobs also increased.
[16] Although Rogers’ evidence was that there were “many” other non-Rogers owned radio stations comparably close to the plaintiff’s home in Paris to which he could have applied naming ones in Woodstock, Brantford and London, Ontario, Rothenberg disputed that and he was not aware of any job openings for a news reporter/broadcaster at any of those listed stations since the date of his termination.
[17] Significantly, Rogers provided no evidence including from its own employees or the career counselling services it offered to Rothenberg that there were in fact any job openings at any of those listed or other radio stations for which Rothenberg could have applied since the date of his termination.
[18] In addition, Rogers provided no evidence to support the bald statement of its witness Dana Bush that Rothenberg could have taken lesser positions at unskilled work if unable to find a comparable position after a year in order to replace his moderate annual income of $39,780.
[19] Rothenberg’s evidence was that he was not interested in working in London which would have increased his former commute to one hour each way, and he did not discover any available positions within a reasonable commute from his residence. Had he discovered any available positions within a reasonable commute, he would have applied for them.
[20] Rothenberg did not conduct a search for jobs in any industry other than radio broadcasting as he has no other skills and qualifications. At this stage of his life, he had no interest in changing or starting a new career. Moreover, his health now limited and prevented him from taking on any jobs which were even moderately labour intensive.
Analysis
[21] Based on this evidence and the agreement of counsel, this is one of those straightforward wrongful dismissal claims that is amenable to a Rule 20 summary judgment motion. Arnone v. Best Theratronics Ltd., 2015 ONCA 63.
[22] I am confident that I can fairly resolve the dispute between the parties on the evidence and reach a fair and just determination on the merits with respect to the two issues of what is the appropriate notice period and whether the defendant Rogers has established that the plaintiff Rothenberg failed to mitigate his damages. I am mindful of the issue of proportionality and the need of the Court to make orders and give directions that are proportionate to the importance and complexity of the issues and the amount involved in the proceeding. In this case, there is no genuine issue requiring a trial on either of those issues. Hyrniak v. Mauldin 2014 SCC 7, 366 D.L.R.(4th) 641 (S.C.C.).
[23] Rothenberg’s position is that he is entitled to damages representing 30 months compensation in lieu of notice without any deduction for his alleged failure to mitigate his damages.
[24] Rogers’ position is that Rothenberg is entitled to a maximum 18 months compensation in lieu of notice which has already been paid to him. Accordingly, his action should be dismissed without even considering the issue of his failure to mitigate his damages. Rogers furthermore states that, in any event, it has established on the evidence that Rothenberg did fail to mitigate his damages.
[25] The Ontario Court of Appeal in its recent decision of Dawe v. The Equitable Life Insurance Company of Canada 2019 ONCA 512 reaffirmed its earlier decision in Loundes v. Summit Ford Sales, 2006 CarswellOnt 11 that generally only exceptional circumstances will support a base notice period for wrongfully dismissed employees greater than 24 months.
[26] The guiding principles from our courts and as noted by Justice Perell in Paquette v. TeraGo Networks Inc., 2015 ONSC 4189 are as follows:
a) An employee who is dismissed without reasonable advance notice of termination is entitled to damages for breach of contract based on the employment income the employee would have received during the reasonable notice period less any amounts received in mitigation of the loss.
b) The purpose of requiring reasonable notice is to give the dismissed employee an opportunity to find other employment.
c) The reasonableness of notice must be determined by reference to the facts of each particular case. In determining the length of notice, the court should consider, among other possible factors, the character of the employment, the length of service, the age of the employee and the availability of similar employment having regard to the experience, training and qualifications of the employee. The factors are not exhaustive and what is a reasonable notice period will depend on the circumstances of the particular case. The jurisprudence on the factors from Bardal v. Globe and Mail 1960 CanLII 294 (ON SC), [1960] O.J. No. 149 stresses that no one factor should be given disproportionate weight.
[27] Most wrongful dismissal cases yield a range of reasonableness and determining a period of reasonable notice is an art and not a science. I am required to weigh and balance a catalogue of factors and there is no right figure for reasonable notice.
[28] In my view, Rothenberg has not established on the evidence that there are exceptional circumstances that entitle him to damages in excess of the 24-month limit imposed by the Court of Appeal in Dawe. A number of the various trial level decisions which awarded 26 months compensation in lieu of notice to terminated employees referred to by plaintiff’s counsel predate the Ontario Court of Appeal decision in Dawe or involved significantly longer periods of employment or exceptional circumstances.
[29] For example, the trial judge in Dussault v. Imperial Oil Limited, 2018 ONSC 1168 awarded compensation of 26 months notice but based on unusual circumstances similar to Keenan v. Canac Kitchens Ltd., 2016 ONCA 79 referred to in Dawe. In the Keenan case, an award of 26 months notice was upheld because the husband and wife plaintiffs had established exceptional circumstances based on their ages of 63 and 61 years, their lengthy service of 32 and 25 years and the character of their positions they held. As supervisors overseeing the installation of the employers’ products and meeting with the customers, they were the public face of the employer to the world.
[30] Those are not facts similar to this case.
[31] Furthermore, it is not appropriate to consider an award of compensation to dismissed employees based on a “rule of thumb” calculation of a particular number of months per year of service. Minott v. O’Shanter Development Company Limited, (1999) 1999 Canlii 3686, 42 O.R. (3d) 321 (C.A.).
[32] In my view, the contextual application of the Bardal factors to the facts of this case results in an award of damages towards the higher end of the scale.
[33] The character of Rothenberg’s position as a news reporter/radio broadcaster suggests there are few positions available in the shrinking radio industry in which Rogers appears to be a major employer. The fact that his income was approximately $40,000 annually does not mean that the character of his employment results in a reduced notice period. Arnone at paragraph 11. In fact, in this case, the unique and specialized nature of Rothenberg’s employment in a shrinking industry tends to increase the notice period rather than decrease it.
[34] The length of service of Rothenberg of almost 20 years with Rogers and its predecessor company also tends to result in a notice period of compensation at the higher end of the scale.
[35] Rothenberg was almost 73 years of age at the time of his termination by Rogers which also tends to suggest a notice period at the higher end.
[36] The last factor is the availability a similar employment having regard to the experience, training and qualification of Rothenberg. In this case, there was essentially no evidence before me that there were in fact other potentially available and comparable positions at other radio stations not owned or controlled by Rogers as a news reporter/broadcaster that Rothenberg could have applied for. His evidence was that the ones he did consider required that he have post-secondary school education which he did not. The evidence on mitigation will be explored further below but the lack of other suitable employment commensurate with his abilities and his work history also places the notice period at the higher end.
[37] I have considered the case law authorities submitted by both counsel with caution as they all turn on their own facts but as guidance in determining reasonable notice given the need for consistency on that issue.
[38] In Kotecha v. Affinia Canada ULC, 2014 ONCA 411, the appropriate notice period for a 70-year-old machine operator who worked for 20 years for the defendant employer before he was wrongfully dismissed and who had no realistic possibility of obtaining similar employment was found to be 18 months. Rothenberg’s specialized work restricted as a radio broadcaster in a shrinking industry would make his potential for re-employment even more difficult.
[39] The Ontario Court of Appeal in Loundes v. Summit Ford Sales Ltd. confirmed the appropriate base notice period for a 59-year-old employee who was dismissed after 28 years of service as a general manager was entitled to 24 months compensation in lieu of notice which was the high end of the appropriate range of reasonable notice for long-term employees in his position.
[40] The Court of Appeal in Arnone in 2015 found that 22 months notice was appropriate for a 53-year-old supervisor who was terminated without cause from his 31-year employment with the company and its predecessor. Although Rothenberg had 11 years less service, he was 20 years older than Arnone.
[41] The Ontario Court of Appeal in Strudwick v. Applied Consumer and Clinical Evaluations Inc., 2016 ONCA 520 confirmed the trial judge’s award of 20 months compensation in lieu of notice for a 56-year-old employee wrongfully dismissed after 16.75 years of service in data entry and instructing recruiting staff. Rothenberg was almost 17 years older with three more years of service.
[42] The 67-year-old plaintiff in Leonard v. Kohler Canada Co., 2009 CarswellOnt 7515 was awarded 18 months compensation in lieu of notice when terminated from his management position of 16 years. Mr. Rothenberg was six years older and had four more years of service than Leonard.
[43] The 52-year-old plaintiff in Cormier v. 1772887 Ontario Limited c.o.b. as St. Joseph’s Communications, 2019 ONSC 587 who was dismissed after 23 years working for the defendant as a fashion studio manager was awarded 21 months of compensation in lieu of notice when she was dismissed without cause. Rothenberg’s length of service was less but comparable, but he was 20 years older than Cormier.
[44] Rather similarly, the 55-year-old plaintiff in Brito v. Canac Kitchens, 2011 ONSC 1011 dismissed without notice from his 24-year long employment as a cabinet maker was awarded 22 months compensation as the appropriate notice.
[45] Justice Dunphy, in Paterson v. IBM Canada Limited, 2017 ONSC 1264, awarded 18 months compensation in lieu of notice for a 67-year-old computer specialist terminated without cause for economic reasons after 22 years of service. However, that 18 months was awarded after a minor discount for his potential future earnings over the seven months of the notice period that had not yet expired at the time of trial.
[46] It appears that the range for reasonable notice periods in lieu of compensation for similar wrongful dismissal cases in the absence of exceptional circumstances is between 18 months and 22 to 23 months.
[47] In my view, the appropriate notice period and compensation in lieu of notice for the wrongful termination of Rothenberg’s employment is 21 months.
Mitigation of Damages
[48] Under ordinary principles of contract law including employment law, a wronged plaintiff is entitled to be put in is as good a position as he would have been if there had been proper performance of the contract subject to the plaintiff’s duty to mitigate.
[49] The wrongfully dismissed employee must make reasonable efforts to seek comparable employment. Comparable employment does not mean any employment but comprehensive employment comparable to the dismissed employee’s employment with his or her former employer in status, hours and remuneration. Red Deer College v. Michaels, 1975 Canlii 15 SCC, [1976 ]2 SCR 324; Dussault v. Imperial Oil Limited, 2019 ONCA 448.
[50] It is the defendant employer who bears the burden of proving a failure to mitigate in wrongful dismissal cases. That burden is not a light one. The employer bears the onus of demonstrating both that an employee has failed to take reasonable efforts to find work and that suitable replacement work could have been found had the employee made reasonable efforts to find it. Red Deer College v. Michaels; Evans v. Teamsters, Local 31 2008 SCC 20 at paragraph 30.
[51] The onus on the dismissed employee to mitigate his damages is to take reasonable, not perfect, steps. Even where a defendant employer proves that an employee’s efforts at mitigation are at best modest, if the employer fails to prove that the employee could have found similar employment had he acted with greater diligence, then the defendant employer has not discharged its burden and the plaintiff will not be found to have failed to mitigate. Day v. JCB Excavators Limited, 2011 ONSC 6848.
[52] Rothenberg’s evidence is not contradicted that he did make inquiries after his termination of his employment with his contacts in the industry about whether they were aware of any available positions. There were none. Rothenberg asked his contacts to keep him in mind and inform him of any positions that became available. There have been none.
[53] Rogers did not provide any evidence challenging Rothenberg’s evidence that he conducted internet searches for jobs as a radio newscaster/broadcaster and found none within a one-way commute of less than one hour.
[54] Not long after Rothenberg’s dismissal, unfortunately he developed serious medical issues. He underwent quadruple bypass heart surgery in December 2018 and required weekly treatment sessions for the following year and monthly sessions thereafter. Madam Justice Cronk in Brito v. Canac Kitchens, 2012 ONCA 861 at paragraph 16 confirmed that there can be no obligation to mitigate damages by finding alternate employment when the employee is totally incapable of working.
[55] It would not be unreasonable, in my view, given the lengthy time required for his medical recovery, which is still not complete, for Rothenberg to restrict his job searching to within a one-hour commute from his house and not to include any jobs which were moderately labour-intensive because his health now prevents him from doing such work. Rothenberg did not stand idly or unreasonably by in his job search on the evidence.
[56] Rothenberg’s evidence was that employers were generally not interested in hiring someone his age let alone for a full-time position, that he had not worked in any other field for his entire working life of 55 years, that he had no college diploma or university degree which is now advertised as a requirement for most if not all open positions in broadcasting and that he had no other skills or training that would allow him to seek employment in other fields.
[57] Rogers provided no evidence that there was any employer in the southwestern Ontario region that had a job available for which Rothenberg could have applied at any time after he was wrongfully terminated until today. Rogers simply listed the four above-mentioned radio employers but provided no evidence that any of them had an opening for any kind of employment for Rothenberg since he was terminated. Rogers did not dispute Rothenberg’s evidence that the radio broadcasting industry is a shrinking industry and may even be a dying industry at least at the local level and that it is a major player in the industry which owns many of the stations where opportunities may be available.
[58] Significantly, Rogers called no evidence from its own career counselling service to suggest there were any such radio broadcasting positions available in southwestern Ontario to Rothenberg since his termination including after the admitted significant economic downturn as of March 2020 because of COVID-19.
[59] Rogers also provided no evidence, including from its career counselling service, that other types of comparable employment that did not involve physical labour were available to Rothenberg in close proximity to his home at any time since he was terminated. The absence of any such evidence from such an agency hired by Rogers is telling and suggests by reasonable inference that there likely were no such positions available to Rothenberg.
[60] Rogers has not satisfied the required onus on it that Rothenberg has not taken reasonable steps to mitigate his damages and in particular that suitable replacement work could likely have been found during the notice period had Rothenberg been more diligent in making reasonable efforts to find it.
Conclusion
[61] The plaintiff Rothenberg is entitled to damages payable by the defendant Rogers which represents 21 months of compensation for income based on his annual salary of $39,780 less credit for the 18 months of compensation paid by Rogers to date resulting in a payment of $9,945, if my calculation is correct, plus pre-judgement interest.
[62] If the parties are not able to agree on the issue of costs, the plaintiff can make submissions of no more than two pages in length together with a bill of costs and any relevant offers to settle within 15 days from the date of this decision. The defendant will similarly be entitled to respond within 10 days thereafter.
[63] If no written submissions are received during those timelines, the parties will be deemed to have resolved the issue of costs.
The Honourable Justice R. J. Nightingale
Date: September 29, 2020
COURT FILE NO.: CV-19-00000209-000
DATE: 2020/09/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HAL ROTHENBERG
Plaintiff
- and -
ROGERS MEDIA INC.
Defendant
ENDORSEMENT
RJN
Released: September 29, 2020