Court File and Parties

COURT FILE NO.: CV-20-633736-0000 DATE: 20210226 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Sarah Nahum, Plaintiff – and – Honeycomb Hospitality Inc., Defendant

Counsel: Stephen LeMesurier, for the Plaintiff Brett Moldaver, for the Defendant

HEARD: February 10, 2021

J.T. Akbarali J.

Overview

[1] The plaintiff, Sarah Nahum, was about five months pregnant when she was terminated without cause by the defendant, Honeycomb Hospitality Inc., after four and a half months of employment. The sole issue on this summary judgment motion is the reasonable notice period, including the impact, if any, that her pregnancy has on its calculation.

Brief Background

[2] Honeycomb is a hospitality and entertainment company that owns and operates several restaurants and bars, primarily in Toronto.

[3] Ms. Nahum was hired by Honeycomb to be their Director of People and Culture, a human resources position that paid $80,000 annually, plus benefits and a cellphone allowance of $100 per month. She began work on June 17, 2019. Ms. Nahum signed an employment agreement, but the parties agree that the termination provisions contained therein are not enforceable.

[4] Ms. Nahum was subject to a three-month probationary period. After about four-and-a-half months of employment, on October 31, 2019, she was terminated without cause.

[5] At the time of her termination, Ms. Nahum was 28 years old, and about five months pregnant. Her baby was born at the end of February 2020.

[6] Apart from a two-month period immediately following the birth of her baby, Ms. Nahum has consistently looked for work since being dismissed. Despite those efforts, both before and after her baby’s birth, Ms. Nahum has not found employment.

[7] Ms. Nahum argues that she is entitled to eight months’ notice. Honeycomb argues that a two-month notice period is generous.

What is the reasonable notice period?

[8] Both parties rely on Bardal v. Globe & Mail Ltd, 24 D.L.R. (2d) 140 (Ont. H.C.), where the court held, at p. 145:

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 qualification of the servant.

[9] To this list of factors, Ms. Nahum seeks to add pregnancy.

[10] I consider each of the factors in turn.

Character of the Employment

[11] The parties disagree about the nature of Ms. Nahum’s employment with Honeycomb.

[12] Ms. Nahum deposes that she was part of the management team at Honeycomb, with overall responsibility for, and supervision of, all things related to human resources. She reported directly to the president. She describes her duties as including running payroll for 350 employees, helping a team that hired roughly 150 new employees for two new venues being launched by Honeycomb, carrying out onboarding for the new employees, acting as the point of contact for employees with human resources concerns, handling WSIB claims, attending management team meetings, updating the onboarding system, attending job fairs, and performing other human resources tasks as necessary.

[13] Honeycomb’s position is that Ms. Nahum is inflating her responsibilities.

[14] Brandon Farmer, the president and a director of Honeycomb, gave evidence that Ms. Nahum was not part of the management team. She made no hiring or firing decisions. No staff reported to her. Ms. Nahum attended to some administrative tasks related to payroll, but payroll was largely automated and facilitated by the managers at the individual hospitality venues.

[15] Mr. Farmer also testified that Ms. Nahum did not perform the onboarding of the employees; rather, employees were hired into individual venues, and were trained by employees who worked at those venues. Ms. Nahum’s role was limited to some administrative tasks.

[16] Mr. Farmer agrees that Ms. Nahum attended several job fairs, and acted as the primary point of contact for employees with human resources concerns. He agrees she handled the WSIB claims.

[17] Mr. Farmer denies that Ms. Nahum updated Honeycomb’s onboarding system for new hires.

[18] Mr. Farmer also denies that Ms. Nahum’s title denotes managerial responsibility. Of twelve employees who worked at Honeycomb, as opposed to at the hospitality venues Honeycomb operates, four or five held director titles, including one whose title was “Director of Nightlife.”

[19] Ms. Nahum earned more than all but one employee who did not hold a director title; she was the lowest paid employee with a director title.

[20] On cross-examination, Mr. Farmer agreed that, in hiring for Ms. Nahum’s position, he had instructed the recruiter that Honeycomb was looking for someone with experience in building human resource initiatives, leading and growing teams, and with experience in a similar role. He agreed that he had intended that Ms. Nahum would, over the course of a year or so, build out a human resources “structure” at Honeycomb. He was looking for someone who could elevate what Honeycomb was doing, and take on recruitment responsibilities, to allow Honeycomb to become more efficient and more competitive.

[21] I accept that Ms. Nahum did not have hiring responsibilities or significant decision-making responsibilities at Honeycomb, and much of her work was administrative in nature. However, the expectation was that she would develop the human resources operations at Honeycomb, which was a task that also required leadership and responsibility. As a result, I conclude that the character of Ms. Nahum’s position was that of mid-level management.

Length of Service

[22] Ms. Nahum’s service at Honeycomb, at four-and-a-half months, was very short.

Age of Employee

[23] Ms. Nahum was 28 years old at termination. Her age should not be an impediment to obtaining a similar position.

Availability of Similar Employment Having Regard to the Employee’s Experience, Training, and Qualifications

[24] Ms. Nahum is American. Her education and most of her work experience was gained in the United States. She has a Bachelor of Arts in Psychology and an MBA with HR concentration from American institutions. She worked in human resources, first as a human resource associate for a year in Los Angeles, then as a human resources administrator in Brooklyn for 13 months. She then held a position as an employee relations specialist in New York for 18 months.

[25] Thereafter, Ms. Nahum moved to Canada with her Canadian husband. She was unemployed for a period while she waited for her work permit.

[26] While searching for a job in Canada, Ms. Nahum interviewed at Honeycomb, and around the same time, at the City of Toronto. She was hired by the City of Toronto and accepted, but within a couple of weeks of taking that position, Honeycomb offered her employment. The position with Honeycomb was higher paying. Ms. Nahum decided to leave the City of Toronto to accept the position at Honeycomb. Because her tenure at the City of Toronto was so brief, she has omitted it from her curriculum vitae.

[27] Ms. Nahum’s only meaningful Canadian work experience is thus her short tenure at Honeycomb. Ms. Nahum believes that not having more Canadian experience is a disadvantage to her. However, it is clear that she is well-educated, and has had relevant experience, even if most of it has been in the United States. It is also clear that having only American education and experience did not prevent her from obtaining at least two positions in Canada in 2019.

[28] After she was terminated, Ms. Nahum applied for at least 36 jobs before her baby was born. She had one interview around January 28, 2020, about a month before her due date. She was not hired for the position. She deposes that she suspects the position went to a candidate who was able to start work right away.

[29] Following the birth of her child, Ms. Nahum took only a two-month break from looking for work. Since then she has applied for at least 75 positions, without success.

[30] I note that Ms. Nahum has also started a “side hustle,” the term she used to describe her nascent business selling gift baskets with self-care products designed for new mothers. Although she began working on this business idea in August 2020, the business did not officially launch until January 6, 2021. As of the time she swore her affidavit, she had made only one sale.

[31] Honeycomb does not allege that Ms. Nahum has not taken steps to mitigate. Clearly Ms. Nahum has taken significant steps to find work, and earn an income, including launching her own business. Unfortunately, she has not yet been successful in those efforts.

[32] While the COVID-19 pandemic might reasonably be thought to impact Ms. Nahum’s job search, the parties agree that it is not a factor in determining the notice period in this case, because Ms. Nahum’s termination pre-dated the pandemic, which could not have been anticipated at the time. As a result, I do not consider it in my analysis.

[33] From this evidence, I conclude that Ms. Nahum has the education and skills required for many available positions. I also infer that the market is competitive [1].

Pregnancy

[34] To the knowledge of Honeycomb, Ms. Nahum was about five months pregnant when she was terminated. The most contentious issue between the parties is whether Ms. Nahum’s pregnancy ought to be considered in determining the reasonable notice period.

[35] In Harris v. Yorkville Sound Ltd. (Ont. S.C.), Dambrot J. considered the reasonable notice period where a woman was terminated very early in her pregnancy. The parties in that case differed on whether the plaintiff’s pregnancy should be a factor in determining reasonable notice. In concluding it should be, Dambrot J. held:

It seems to me that if part of the concern in the exercise of setting reasonable notice is the availability of other work, and the possibility of the dismissed employee being hired for it, then pregnancy has to be a consideration.

[36] Dambrot J. found that he did not require evidence to find that the plaintiff’s pregnancy did not enhance her immediate employability. Without the pregnancy, he would have found that ten months’ notice was appropriate. In view of the pregnancy, he added two months’ notice, for a total of a twelve-month reasonable notice period.

[37] In reaching his conclusions, Dambrot J. relied on the decision of Hoilett J. in Tremblette v. Aardvark Pest Control Limited, [1987] O.J. No. 2380, 16 C.C.E.L. 306 (Ont. Dist. Ct.). In that case, in determining the period of reasonable notice, Hoilett J. considered a number of factors, including that the plaintiff was pregnant at the time of her dismissal, “a fact which, fairly or not, did not enhance her immediate employability.”

[38] Dambrot J. also relied on a 2002 decision of the Divisional Court, Ivens v. Automodular Assemblies Inc., [2002] O.J. No. 3129, 162 O.A.C. 124 (Div. Ct.). There, the Divisional Court was asked to consider whether the trial judge erred in law when she concluded that she was “not satisfied that [the appellant’s pregnancy] [was] a factor which the law should recognize in circumstances like those in this case.” The trial judge noted the plaintiff’s argument that her pregnancy and the complications she was experiencing would make it more difficult for her to find employment.

[39] The Divisional Court noted that the trial judge found as a fact that the pregnancy would impact on the appellant’s employability. However, the trial judge concluded that it did not seem to be sound policy to distinguish the notice that employees of otherwise identical backgrounds would receive, “solely on the ground that one had a disability that would affect employment opportunities,” finding that to do so it would be unfair to employers, and speculative.

[40] The Divisional Court noted that the purpose of reasonable notice is to give the employee an opportunity to find other employment. As a result, it found that the appellant’s pregnancy complications were a “Bardal-type factor” that should have been considered in determining what constituted reasonable notice to the plaintiff, along with the other relevant factors.

[41] In contrast, a 2001 decision of the Ontario Superior Court of Justice, Colburn v. Unity Savings and Credit Union Limited, [2001] O.J. No. 2920, 106 A.C.W.S. (3d) 856, found that the plaintiff’s pregnancy was not a factor in her termination, and on the facts of that case, should not be a factor in determining the amount of notice, or pay in lieu of notice. In Colburn, the court noted the trial decision in Ivens, which was overturned after Colburn was released. The court also noted the decision in Tremblette, but it did not explain why it did not accept the reasoning set out by Hoilett J. in that case.

[42] Honeycomb argues that it is problematic to find that pregnant people are less likely to find employment, for several reasons. First, it argues that concluding that pregnant people are less likely to become employed implies that prospective employers will violate human rights legislation in their hiring decisions, and the dismissing employer will be held responsible for the wrongs of others.

[43] I do not accept this submission. There is no certainty that an employer who prefers a candidate who is not pregnant is violating human rights legislation. An employer seeking to fill a position is likely to have an immediate need for someone in the role. The prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organization. It is not possible to conclude that the disadvantage to pregnant person in the hiring process will necessarily be a human rights violation.

[44] Second, Honeycomb argues that in order to reach the conclusion that pregnancy is often a disadvantage in a job search, I require evidence, because I am not able to take judicial notice of that fact. In support of its argument, it states (without evidence) that there are websites dedicated to assisting pregnant people in undertaking a job search, indicating that pregnant people look for work all the time.

[45] I have difficulty with this argument as well. The jurisprudence I have referred to makes clear that the purpose of reasonable notice is to provide a reasonable period of time for a person dismissed from their employment to obtain a new position. Objectively, a person’s pregnancy is likely to increase the amount of time it will take them to find new employment in most cases, because most employers want to fill a need in their organization with someone who will be present to fill that need.

[46] As I have noted, other courts have concluded, without evidence, that pregnancy creates difficulties for a person searching for employment. Justice Dambrot specifically found that he did not need evidence to reach that conclusion. This past judicial consideration supports the conclusion that it is open to me to take judicial notice that pregnant people face additional challenges when looking for work. Judicial notice may be taken of this conclusion because it is a fact so notorious or generally accepted as not to be the subject of debate among reasonable persons.

[47] I also note that there would be no reason for websites advising pregnant people on how to conduct a job search if pregnancy were not a disadvantage in the job search process.

[48] Third, Honeycomb argues that considering pregnancy when determining the reasonable notice period is problematic because it opens the door to the inclusion of other factors that may impact an individual’s professional success. By way of example, it argues (without evidence) that “tall people are generally more successful according to several studies than others.” It suggests that if pregnancy is relevant to the notice period, shorter people could also make an argument in support of a longer notice period.

[49] Nothing in this argument recognizes the inherent barrier that pregnancy poses to most job searches – the impending absence of the prospective employee from a position for which they are not yet trained, in which they have not yet proven themselves, and in respect of which the employer is most likely seeking to fill an existing need. There is no reason to suppose short people are going to need to take an imminent and possibly lengthy leave of absence shortly after being hired.

[50] However, I do agree with Honeycomb that pregnancy should not function to automatically lengthen the notice period in every case. Like all factors relevant to the notice period, pregnancy is one of the factors to be considered in the circumstances of the case.

[51] Much like a person’s advanced age will often be a factor tending to increase the notice period, it will not always be; a 28-year-old can hardly expect to be hired for a job that demands 30 years of experience, for example.

[52] Similarly, a pregnant person may not always be impeded in their job search due to pregnancy, where, for example, they are searching for a job to commence in the future (for instance, a second-year law student looking for an articling position). A pregnant person with very specific skills that are in demand may reasonably expect to find an employer willing to accommodate their upcoming need for a maternity leave. However, there is no principled reason why, when determining the damages of a wrongfully dismissed employee, their pregnancy at the date of dismissal should not factor into the reasonable notice period when their pregnancy is reasonably likely to negatively impact their ability to find alternative employment.

[53] In this case, as I have noted, Ms. Nahum applied to at least 36 positions after her dismissal and before her baby was born. Only one resulted in an interview. Ms. Nahum agreed on cross-examination that, apart from the prospective employer who interviewed her, Ms. Nahum did not disclose her pregnancy to other employers. She indicated that prospective employers could have learned of her pregnancy if they had looked her up on Instagram, but there is no evidence to suggest that any did, or that they did not.

[54] In any event, the question of the reasonable notice period must be answered at the time of Ms. Nahum’s dismissal: Holland v. Hostopia.com Inc., 2015 ONCA 762, at para. 61. To the extent hindsight clarifies the impact her pregnancy had on her job search, it is as irrelevant as the COVID-19 pandemic.

[55] At the time of her dismissal, Ms. Nahum was five months pregnant. In my view, it is unreasonable to expect she would be able to obtain new employment in the two month period proposed by Honeycomb given the point in her pregnancy at which she was terminated, and the competitive job market in which she was seeking work.

Conclusion and Calculation of Amount Owing

[56] I have considered the cases provided by the parties to illustrate reasonable notice periods in situations which share some factors in common with this case. For example, in Van Wyngaarden v. Thumper Massager Inc., 2017 ONSC 3909, a 59-year-old employee who had been employed almost six months, earning $80,000 annually, without managerial or supervisory functions, was awarded four months’ reasonable notice. In Bergeron v. Movati Athletic (Group) Inc., 2018 ONSC 885, an employee of 16 months who was 39 at the time of dismissal and held a middle to upper management position was awarded three months’ reasonable notice. In Barry v. Certified Equipment Sales Services and Rental Ltd. (Ont. S.C.S.M.), a middle-aged HR manager who earned under $60,000 annually and was employed for 23 months received 6 weeks’ notice.

[57] None of these cases are very helpful comparators, because Ms. Nahum’s pregnancy is, in my view, an important factor in assessing reasonable notice in this case, along with the character of her employment, and her brief length of service.

[58] Weighing all the relevant factors together, I conclude that, in the circumstances of this particular case, a reasonable notice period of five months is appropriate.

[59] Given her annual salary of $80,000, and her $100 monthly cell phone allowance, her reasonable notice period entitles her to damages for base salary and cell phone allowance of $33,833.33, plus some amount in respect of her benefits, less the amount she already received.

[60] With respect to the calculation of the benefits owing to Ms. Nahum, the parties take different approaches. Ms. Nahum argues that benefits should be calculated at 10% of her salary, or $8,000 annually, an approach adopted in some cases. Mr. Farmer deposes that the cost of Ms. Nahum’s benefits was about $287 per month, but he does so without any documentary back-up to explain the calculation of that amount. Moreover, on cross-examination, it became clear he had no idea how the figure was calculated.

[61] Ms. Nahum’s employment agreement values her benefits at $5,700 annually. In my view, this is the figure that best captures the value of Ms. Nahum’s benefit entitlement. Her monthly benefit entitlement is therefore $475. Ms. Nahum’s benefits were continued for one month after her termination. Thus, she is entitled to the value of four months of benefits, or $1,900.

[62] Ms. Nahum received one week’s notice, which I calculate to be $1,538.46.

[63] Accordingly, Ms. Nahum is entitled to damages in the amount of $34,194.87, plus pre-judgment and post-judgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43.

Costs

[64] The parties have advised me that there are offers to settle that may impact on costs. If the parties cannot agree on costs, I will receive written submissions as follows:

a. Any party claiming costs shall deliver their costs submissions, not to exceed two pages, plus a bill of costs and any offers to settle, by March 5, 2021;

b. Responding submissions, not to exceed two pages, plus a bill of costs and any offers to settle, shall be delivered by March 12, 2021;

c. Reply submissions, not to exceed one page, shall be delivered by March 16, 2021.

[65] Costs submissions may be sent to me by way of email to my assistant at yomattie.evans@ontario.ca

Released: February 26, 2021 J.T. Akbarali J.

Footnotes

[1] Mr. Farmer gave evidence of his recollection that there were not many candidates who applied for Ms. Nahum’s position, implying that perhaps Ms. Nahum’s skills were, or are, in demand. However, his recollection was hazy, and I put little weight on this evidence. Moreover, Ms. Nahum’s lack of success finding work since her dismissal despite her significant efforts does not support a conclusion that her skills are in demand, or that few other candidates possess them. It is more likely that there are many available candidates who have a similar skill set to Ms. Nahum.