COURT FILE NO. CV-20-00641146-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIA BUTKOVIC
Plaintiff
– and –
HUDSON’S BAY COMPANY
Defendant
Jean-Alexandre De Bousquet, lawyer for the Plaintiff
Edward J. O’Dwyer, lawyer for the Defendant
HEARD: MARCH 30, 2021
REASONS FOR DECISION
G. DOW, J.
1The plaintiff seeks damages by way of summary judgment arising from her wrongful dismissal by the defendant. The parties agreed summary judgment was an appropriate method of determining the plaintiff’s damages. Four issues were identified in submissions:
what is the proper length of notice;
what should be included in addition to base salary, that is retirement plan contributions, the value of group benefits and a post-termination training expense;
what impact should the plaintiff’s resignation on April 27 have on the eight weeks of working notice that was provided to the plaintiff three weeks previously;
if the notice period extends beyond the release date of these Reasons, what approach should be taken to that portion of the award?
Issue – Proper Length of Notice
2The plaintiff sought 14 months while the defendant submitted 6 months was appropriate. The parties agreed the four factors to be applied are that set out in Bardal v. Globe & Mail, [1960] O.W. No. 252 (Ont.H.C.).
3The first factor is the age of the plaintiff. She is currently 39 years of age. The plaintiff’s counsel acknowledged this is not old and, in fact, fairly young. I agree. This factor weighs in favour of a shorter period of notice.
4The second factor is the length of service. The parties agreed the plaintiff began working for the defendant on September 8, 2010 and was terminated April 17, 2020 or nine years and eight months later. The termination without cause was related to the COVID pandemic and provincial temporary closing of the defendant’s retail outlets. I find the length of service, while certainly not brief, is also not within that of life long or career employee. It favours a modestly longer period of notice.
5The third factor is the character of her employment. She was being paid $58,000.00 per year (or $4,033.33 per month) at the time of her dismissal. She also received employer contributions of $1,148.00 per year (or $95.67 per month) towards a retirement plan. She had a group health plan which apparently cost $1,279.44 per year but was acknowledged had a value of 10% of her annual income.
6Her duties included data analysis and supporting other employee’s use of HBC’s Remote File System. Her responsibilities and qualifications were detailed in Exhibit A to the HBC’s responding affidavit. Counsel for the plaintiff submitted her skill set was similar to that of a professional and “subject matter expert”. This was despite the plaintiff having no post-secondary degree or diploma.
7The defendant characterized the plaintiff’s position as preliminary data analysis, general administrative tasks and proficiency with Microsoft Office products. It was also acknowledged that her employment included on the job training which suggested some specialized skills as reflected in her annual salary. There was no managerial aspect to her role.
8In support of its position that 14 months was the appropriate notice period counsel for Ms Butkovic relied on decisions involving teachers, geologists and engineers who were dismissed. I do not find these professions to be similar in nature to the duties of the plaintiff. The character of the positions in the decisions relied on by the defendant involved accounts payable clerks and sales representatives. Again, such positions are not similar to my understanding of the plaintiff’s responsibilities. I am mindful of the statement by the Court of Appeal in Michela v. St. Thomas of the Villa Nova Catholic School, 2015 ONCA 801 (at paragraph 16) that the assumption positions with higher levels of responsibility, expertise and management skill should attract longer periods of notice has become of declining relative importance. Overall, I find the specialized nature of her training and her level of renumeration warrants a longer period of reasonable notice.
9Regarding the fourth factor of similar employment having regarded the experience, training and qualifications of the employee, a consideration of the reality the plaintiff was dismissed shortly after the onset of the COVID pandemic was raised.
10Counsel for Ms. Butkovic relied on the guidance of the Court of Appeal in Michela v St. Thomas of the Villa Nova Catholic School, supra (at paragraph 17) that while the financial circumstances may be the reason for termination, the court’s concern is with the circumstances of the employee, not the employer. Counsel for HBC relied on the statement of my colleague, Justice Dunphy in Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998 (at paragraph 19) in considering “the impact of the pandemic on the economy in general and on the job market, in particular, was highly speculative and uncertain both as to degree and to duration” at the time of dismissal. The guidance from the Court of Appeal in Holland v. Hostopia.com Inc., 2015 ONCA 762 (at paragraph 61) was straight forward, “Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”. Certainly, the circumstances for evaluating the availability of similar employment as of late April, 2020 was less certain than if the COVID pandemic was not occurring.
11I agree with the conclusion of Justice Dunphy in Iriotakis v. Peninsula Employment Services Limited, supra (at paragraph 22) that a balanced approach is required. To that end, I have also considered that there is no dispute Ms. Butkovic has been seeking alternative employment since her dismissal without success. There is no issue of Ms Butkovic’s failure to mitigate her claim for damages. She has also attempted to upgrade her skills by enrolling and completing a course at Seneca College at a personal cost of $1,051.40.
12Based on consideration of the entire factual matrix as detailed above, I find 11 months to be the proper notice period. That is, until March 17, 2021.
Issue – What Should be Included?
13The parties agreed that Ms. Butkovic is entitled to the notice period being calculated on her $58,000.00 per year base salary in March, 2020. That is, and I award, $53,166.67 for 11 months.
14Pension contributions by HBC was sought based on the $1,148.00 per year contribution. Counsel for HBC submitted it should be part of the 10% of base salary for benefits. I disagree. I was not directed to any evidence to substantiate that submission. That is, and I award, $1,052.33.
15The value of Ms. Butkovic’s benefits was acknowledged by counsel for HBC to be 10% per year. This was consistent with a past decision of this Court involving HBC. In fact, I was referred to my decision in Yee v. Hudson Bay’s Company, 2021 ONSC 387 (at paragraphs 29 to 31). That is, and I award, $5,316.67.
16The plaintiff also sought reimbursement for the $1,051.40 paid to Seneca College for courses taken after being terminated. I was not directed to any evidence that supported this position such as the employer’s past willingness to reimburse employees for such self improvement expenses. I note these expenses were not for placement assistance or career counselling which can be the subject of reimbursement. I decline to award same.
Issue – Impact of Resignation
17Prior to her termination on April 17, HBC gave notice to Ms. Butkovic on April 3 that, as a result of the COVID pandemic, her salary was being reduced by 25% effective April 12. The April 17 termination stated Ms. Butkovic’s employment would conclude effective June 12, or 9.8 weeks after notice was given. On April 27, Ms. Butkovic gave notice to HBC that she was resigning effective May 8. That is, Ms. Butkovic stopped working within the working notice period given to her. There is no evidence that the work environment was not harmonious, civil or that Ms. Butkovic was not treated with respect.
18On May 15, HBC paid the 25% salary reduction to Ms. Butkovic. On June 8, HBC provided Ms. Butkovic with 9.8 weeks notice of pay in lieu of notice.
19Counsel for HBC submitted the five week period should be deducted from the award in accordance with the principle outlined in Evans v. Teamsters, Local Union No. 31 2008 SCC 20, 2008 SCC20 (at paragraph 28). However, I would distinguish that legal principle and what occurred between Ms. Butkovic and HBC on the basis that the 25% reduction of her salary effective April 3 was a significant change in the employment relationship that resulted in her constructive dismissal. It was not corrected until May 15 or one week after Ms. Butkovic stopped working. As a result, I am not prepared to reduce her recovery by the five weeks between May 8 and June 12 that Ms. Butkovic did not work. HBC is entitled to deduct all wages and benefits paid to Ms. Butkovic after her termination on April 17, 2020.
Issue – Trust and Accounting or Present Value Discount
20This issue was raised given the submission by Ms. Butkovic that she was entitled to notice beyond the date this matter was before the court. As the release date of this decision is beyond the date of the award, this issue is not required to be addressed.
Conclusion
21Ms. Butkovic is entitled to 11 months of notice. This includes her base salary of $53,166.67, HBC’s pension contribution of $1,052.33 and the 10% value of benefits or $5,316.67. The total is $59,535.67. HBC is entitled to deduct all payments made to Ms. Butkovic subsequent to April 17, 2020.
22The parties had not prepared Costs Outlines contrary to Rule 57.01(6). I was advised there are various Offers to Settle which could factor into the disposition of costs. I urge the parties to agree on costs. Should they not be able to do so, they shall forward to my attention written submissions not longer than five pages, doubled spaced in a readable font outlining their position with the relevant Offer to Settle and Costs Outlines attached on or before June 11, 2021. Their material shall be delivered by email to my assistant at the email address from which this decision was released to counsel.
_____________________________ Mr. Justice G. Dow
Released: May 12, 2021
COURT FILE NO. CV-20-00641146-0000
DATE: 20210512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARIA BUTKOVIC
Plaintiff
– and –
HUDSON’S BAY COMPANY
Defendant
REASONS FOR DECISION
Mr. Justice G. Dow
Released: May 12, 2021