Court File and Parties

COURT FILE NO.: 19-71242 DATE: 20210223 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Ursula Sams, Plaintiff Lluc Cerda, Counsel for the Plaintiff

• and -

BCG Logistics (2000) Inc., Defendant No one appearing for the Defendant, having been noted in default

HEARD: In Writing

Reasons for Judgment

THE HONOURABLE JUSTICE L. SHEARD

[1] This matter was first before me on January 8, 2021 by way of a motion for default judgment.

[2] The plaintiff seeks damages for wrongful dismissal. She had been employed by the defendant for approximately 12 years until September 25, 2019 when, she alleges, she was constructively dismissed.

[3] The evidence before me on the motion included an affidavit sworn on August 22, 2020 by Teilen Celentano, a summer student with the plaintiff’s law firm. The affidavit was based on information and belief.

[4] The Celentano affidavit states that the plaintiff was an Administrative Assistant and Receptionist earning a salary of $42,000 per year together with a semi-annual bonus, comprehensive group benefits and two weeks of paid vacation. The affidavit stated that on September 25, 2019, the defendant advised the plaintiff that she was being placed on a temporary lay-off.

[5] On November 15, 2019, the plaintiff sued her former employer. A notice of intent to defend was delivered on January 15, 2020 but no statement of defence was delivered.

[6] In the Celentano affidavit, the plaintiff asked for default judgment of $56,000 representing “a 16-month reasonable notice period for constructive dismissal”. The plaintiff additionally sought $50,000 for punitive, aggravated and general damages, costs, disbursements and interest.

[7] The motion for default judgment also included an affidavit sworn by the plaintiff on October 2, 2020. In her affidavit, the plaintiff states that she earned $52,000 annually, in addition to receiving comprehensive group benefits and two weeks’ annual paid vacation.

[8] Paragraph 8 of the plaintiff’s affidavit reads as follows:

I have been diligently searching for a job since my employment with the defendant ended, but my search was made difficult by the current economic climate, the current health epidemic and scarcity of job opportunities. I have looked for work by way of searching job postings online, contacting potential employers on my own, and I have also made inquiries with friends, family and professional contacts regarding employment opportunities. In searching for work, I also regularly check job postings in the newspapers.

[9] In paragraph 8, reproduced above, the plaintiff uses the present tense when referring to her job search, leaving the reader with the impression that the plaintiff was still unemployed as at the date of the affidavit.

[10] Upon my review of the motion material, I observed that the plaintiff’s affidavit did not provide any evidence as to her current employment status.

[11] On January 6, 2021, I asked the assistant trial coordinator to send an email to the plaintiff’s counsel with the following message:

If the plaintiff seeks a judgment based on amounts different from set out in the statement of claim, I will require the following:

1. An affidavit from his client that states: a) She has not yet found employment; and b) Provides proof of the plaintiff’s annual remuneration, including bonuses, preferably in the form of T-4 slips or tax returns for the last three years of her employment.

Rather than to lose Friday’s hearing date, this requested affidavit material may be filed on the motion on Friday, and marked as an exhibit on the motion.

If the requested affidavit cannot be made available by Friday, the motion could proceed on the basis of the material filed, but the judgment will have to be based on the amount set out in the statement of claim of which the defendant has had notice.

Alternatively, a decision on the motion could be reserved to allow time to file additional evidence.

[12] The motion proceeded on January 8, 2021 by way of teleconference. Counsel for the plaintiff submitted that the plaintiff sought default judgment based on the salary set out in her statement of claim: $42,000 per year, together with an amount for benefits during the notice period.

[13] In my endorsement of January 8, 2021, I did not grant the relief sought. I noted:

(a) the plaintiff sought damages for benefits during the notice period but put forth no evidence of the value of those benefits; (b) the plaintiff submitted that the proper notice period was 16 months and sought damages equal to 16 months’ salary but had failed to put forth any evidence about when she secured alternate employment, despite my request for that information prior to the hearing of the motion; and (c) the plaintiff also sought aggravated damages of $50,000.00, which I found was not supported by the evidence.

[14] As further noted in my endorsement of January 8, 2012, counsel submitted that the plaintiff’s damages should not be reduced by income earned by the plaintiff in mitigation of her damages because the defendant, not having filed a defence, did not advance a claim that the plaintiff had failed to mitigate her losses.

[15] Plaintiff’s counsel was asked to file case law to support the plaintiff’s position that “even if she found a new job within the notice period, the defendant would not be entitled to a reduction in the amount of damages” (January 8, 2021 endorsement).

[16] On January 13, 2021, the plaintiff provided the court with brief submissions and cases on which she sought to rely for her position that, not having defended the claim, the defendant was not entitled to credit for any income earned by the plaintiff during the (16-month) notice period. Consistent with that position, the plaintiff opted not to disclose to the court that she had found replacement employment in January 2020.

[17] I considered the plaintiff’s cases and submissions of January 13, 2021. They did not address the core issue of whether the plaintiff’s damages should be reduced if the plaintiff mitigated her loss by finding new employment.

[18] The position taken by the plaintiff that no credit should be given to the defendant if the claim is undefended is wrong in law: plaintiffs have an obligation to mitigate their damages and, if successful, their damages are reduced.

[19] In this case, the plaintiff was seeking to recover an amount equal to her salary for a period of 16 months – the notice period she asserted was appropriate – although, as later disclosed to the court, the plaintiff had found replacement employment in under four months.

[20] On February 16, 2021, I issued a second endorsement. As set out in that endorsement, I held that even on a motion for default judgment, the onus was on the plaintiff to prove her damages (Garcia v. 1162540 Ontario Inc., 2013 ONSC 6574 (Div. Ct.) at paras. 29 and 30). Had the action been defended and the plaintiff been unable to obtain new employment, then the onus would have shifted to the defendant to demonstrate that the plaintiff had failed to mitigate (West v. Mex Precision Wire Corporation, 2018 ONSC 6572).

[21] The law respecting damages in a wrongful dismissal claim is not new. In Sylvester v. British Columbia, [1997] 2 SCR 315, para. 1, the court stated as follows:

An employee who is wrongfully dismissed without reasonable notice of termination is entitled to damages for breach of contract. These damages represent the salary the employee would have earned had the employee worked during the notice period, less any amounts credited to mitigation.

[22] Sylvester remains good law and has been recently followed by our Court of Appeal. See, for example, O'Reilly v. IMAX Corporation, 2019 ONCA 991.

[23] In my endorsement of February 16, 2021, I found that the plaintiff was entitled to judgment in an amount equal to her statutory severance pay, for which she was to provide particulars.

[24] I also held that, if the plaintiff sought to recover damages arising from the defendant’s failure to provide her with adequate notice, the plaintiff would have to provide proof of her damages in the form of an affidavit setting out whether she earned income in the notice period and, if so, to calculate her net lost income.

[25] On February 20, 2021, the plaintiff submitted an affidavit sworn on January 12, 2021. She stated that on January 6, 2020, she had obtained employment on a temporary basis, comparable to her work with the defendant. On March 24, 2020, the plaintiff became a permanent employee at a salary of $43,346.18, together with a bonus, vacation, and sick pay. She remains in that employment.

[26] In the email that accompanied the plaintiff’s January 12, 2021 affidavit, counsel for the plaintiff provided the information requested as to the plaintiff’s statutory entitlements. Counsel submitted that the plaintiff is entitled to eight weeks’ termination pay payable pursuant to the Employment Standards Act, 2000 (s. 57) (the “ESA”) and vacation pay on that eight weeks calculated at 6%.

[27] Based on the plaintiff’s salary with the defendant of $42,000 per year, she submits that she is entitled to a statutory termination pay of $6,461.52 (weekly salary of $807.69 x 8 weeks) together with vacation pay of $387.69 ($6,461.52 x 6%), for total of $6,849.21.

[28] In addition, the plaintiff claims damages equal to the salary she would have earned during what, she asserts, would have been within the reasonable notice to which she was entitled. The relevant period runs from the date of her constructive dismissal on September 25, 2019 to January 6, 2020, when she began her new employment. This is a period of 14 weeks and five days, which, I accept, falls within the reasonable notice period to which the plaintiff was entitled, as a 12-year employee. The plaintiff calculates those damages at $5,249.98 (6.5 weeks [^1] x $807.69). The plaintiff concedes that as of January 6, 2020, she had fully mitigated her damages.

Disposition

[29] For the reasons set out above, and in my earlier endorsements dated January 8 and February 16, 2021, I find that the plaintiff is entitled to judgment against the defendant in the total amount of $12,099.19 which is comprised of her statutory entitlement of $6,849.21, together with damages awarded in respect of the notice to which the plaintiff was entitled from the defendant in the amount of $5,249.98.

Costs

[30] The plaintiff submitted a Costs Outline on January 13, 2021. In it, the plaintiff seeks costs on a partial indemnity basis of $1,819.30 inclusive of disbursements and HST. The amount awarded the plaintiff falls well within the jurisdiction of the Small Claims Court. In fairness to the plaintiff, however, when she issued the claim in November 2019, she did not then know that she would succeed in finding new employment so quickly and at salary comparable to her salary with the defendant.

[31] I am satisfied that the costs claimed by the plaintiff were incurred in respect of the entire action, including this motion, and are reasonable. In the exercise of my discretion under the Courts of Justice Act and consideration of the factors under Rule 57.01 of the Rules of Civil Procedure, I award the plaintiff her costs of this action and this motion in the total amount of $1,819.30, inclusive of disbursements and HST.

Justice L. Sheard Released: February 23, 2021

[^1]: In addition to the plaintiff’s minimum ESA entitlements.