COURT FILE NO.: CV-20-00639025

DATE: 20201203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dwight Lue-Fong Plaintiff

– and –

Big Picture Home Entertainment Limited Defendant

A. Van Kralingen and K. Chau, for the Plaintiff

No submissions received from the Defendant

HEARD: In writing

O’BRIEN, J.

REASONS FOR JUDGMENT

1This is a motion in-writing seeking to have the Defendant noted in default and for default judgment. The Plaintiff, Mr. Lue-Fong, claims that he was wrongfully dismissed from the Defendant company, Big Picture Home Entertainment Limited (“Big Picture”). The action was commenced slightly more than two years after Mr Lue-Fong’s dismissal. For the reasons that follow, I find that the action is not statute barred and that Mr. Lue-Fong is entitled to judgment for damages in lieu of reasonable notice of termination.

Action not statute barred

2On my initial review of the material, I noted that the Mr. Lue-Fong received notice of his termination on March 30, 2018 and that the Statement of Claim was issued more than two years later on April 1, 2020. I requested further submissions from the Plaintiff on whether there was an issue of the action being statute barred pursuant to the Limitations Act, 2002, S.O. 2002, C. 24, Sched. B. The Plaintiff helpfully provided further written submissions and I now am satisfied that the action is not statute barred in view of the impact of the Emergency Management and Civil Protection Act, R.S.O. 1990 c. E. 9.

3Specifically, subsection 7.1(2) of the Emergency Management and Civil Protection Act temporarily suspended limitation periods in Ontario as of March 16, 2020. Further, s. 6 of O. Reg. 73/20 provided that while the limitation period would resume running at the end of the temporary suspension period, the temporary suspension period is not to be counted. On September 14, 2020, O. Reg. 73/20 was revoked by O. Reg. 457/20 and as a result the temporary suspension came to an end. However, by that point the action had been issued and therefore was within the two-year limitation period.

The Defendant may be noted in default

4In this case, the Plaintiff did not follow the usual practice of requiring the registrar to note the Defendant in default pursuant to r. 19.01(1) of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194. This is because at the relevant time, the courthouse had temporarily stopped noting defendants in default due to the COVID-19 pandemic. However, I am able to note a defendant in default: Hans v. Mohammadi, [2005] O.J. No. 2415 (C.A.), at para. 11. The Statement of Claim was served on the Big Picture on May 19, 2020. In June 2020, counsel for Big Picture advised counsel for Mr. Lue-Fong that Big Picture did not intend to defend the action. Big Picture has not served a Notice of Intent to Defend nor a Statement of Defence. In addition, Big Picture has not responded to the within motion in spite of having been served with the motion materials several weeks ago. In these circumstances, and considering the pandemic, I consider it appropriate to note Big Picture in default as requested on this motion.

Wrongful dismissal

5Mr. Lue-Fong is entitled to payment in lieu of notice with respect to the termination of his employment.

6Pursuant to r. 19.02(1)(a), a defendant who has been noted in default is deemed to admit the truth of all allegations of fact made in the Statement of Claim. However, pursuant to r. 19.06, the Court must be satisfied that the facts entitle the plaintiff to judgment.

7It is an implied term in all contracts of employment that an employee is entitled to reasonable notice of termination. Absent an express agreement to the contrary, an employee is entitled to common law damages as a result of the breach of that implied term: Howard v. Benson Group Inc., 2016 ONCA 256, at para. 20.

8The uncontested facts are that Mr. Lue-Fong commenced his employment with a predecessor of the Defendant on March 8, 1999. At that time, he was provided with a letter confirming the terms of his employment, which was silent as to his entitlement on termination without cause. Mr. Lue-Fong worked for Big Picture as an installer of home theatre systems. He was terminated on March 30, 2018 when he was informed Big Picture was going out of business, effective immediately. Mr. Lue-Fong was not provided with any statutory entitlements, nor his entitlement to reasonable notice at common law. In these circumstances, Mr. Lue-Fong is entitled to damages in lieu of reasonable notice.

9Mr. Lue-Fong claims that a reasonable notice period of 24 months would be appropriate in view of the factors set out in Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC), [1960] O.J. No. 149 (H.C.J.): the character of employment, the employee’s length of service to the employer, the employee’s age, and the availability of comparable employment having regard to the employee’s experience, training and qualifications.

10The uncontested facts are that Mr. Lue-Fong was 47 years-old at the time of his termination and had worked for Big Picture and its predecessors for a continuous period of 19 years. His base salary was $55,000 per year. He worked as an installer of home theatre systems, with no managerial or supervisory duties.

11I have considered the cases provided in the Plaintiff’s factum in support of the claimed notice period and find they do not support a notice period of 24 months in all the circumstances. For example, in Bovin et al. v. Over the Rainbow Packaging Services Inc., 2017 ONSC 1143, the terminated employees were the two most senior employees of the company. Here, Mr. Lue-Fong did not have any supervisory functions. In Brien v. Niagara Motors Ltd., 2009 ONCA 887 and Sweeting v. Mok, 2015 ONSC 4154 the dismissed employees were a few years older than Mr. Lue-Fong and had more years of services. However, I recognize that Mr. Lue-Fong did work for an extended period, all for the same employer and that this should be recognized in his reasonable notice period. I consider 20 months to be reasonable in the circumstances of this case.

Damages

12Mr. Lue-Fong has provided affidavit evidence in support of his damages. Specifically, his evidence is that following receipt of his final pay on March 30, 2018, he has not received any other payments following his termination from employment. He also has provided evidence that his annual salary was $55,000. When this amount is pro-rated for 20 months, Mr. Lue-Fong is entitled to $91,667.00.

13Although a wrongfully dismissed employee has a duty to mitigate their damages, the onus is on the employer to prove that the employee’s losses were avoidable or avoided: Brake v. PJ-M2R Restaurant, 2017 ONCA 402, at para. 125. Here, Mr. Lue-Fong has provided evidence in support of his mitigation efforts. Specifically, he advises that during the period March 30, 2018 to March 30, 2020 he earned approximately $22,182.00 in self-employment income installing home theatre systems on a contract basis. He has been unsuccessful in securing ongoing, full-time employment in his field. I am not able to determine whether the additional income was earned during the 20-month notice period I have established, as Mr. Lue-Fong has provided me only with a 24-month period. While likely this income was not all earned during the last four months, the onus is on the employer to prove the avoidable loss, including the degree to which any income earned by the former employee was properly attributable to the notice period: see Brake, at para. 127. Given that Big Picture has not done this, I will not deduct this amount from the damages owed.

Disposition

14Therefore, Mr. Lue-Fong is entitled to damages from Big Picture in the amount of $91,667.00. Mr. Lue-Fong may provide a revised draft judgment for my signature in accordance with these Reasons by e-mail to my judicial assistant, Anna Maria Tiberio.

O’Brien, J.