COURT FILE NO.: CV-18-00600369
DATE: 20210623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADAM MAZANEK
Plaintiff
– and –
BILL & SON TOWING LTD.
Defendant
David A. Vaughan and Lluc Cerda, for the Plaintiff
Mark A. Klaiman, for the Defendant
HEARD: February 22, 23, 24, 2021
j. steele j.
[1] This is a claim by the plaintiff, Adam Mazanek, for damages for wrongful dismissal against the defendant, Bill & Son Towing Ltd. (“Bill & Son”). The defendant asserts that Mr. Mazanek was dismissed for cause.
[2] The defendant counterclaimed against the plaintiff for damages on the basis that Mr. Mazanek has been unjustly enriched.
[3] For the reasons set out below, I find that there was no just cause for Mr. Mazanek’s termination. Accordingly, he is entitled to damages for wrongful dismissal. The counterclaim brought by Bill & Son is dismissed.
Overview
[4] Mr. Mazanek was summarily terminated from his employment as a tow truck operator with Bill & Son after five and half years of employment. He was not provided with any warnings, nor was he given any reason for his termination when his employer terminated him.
[5] Bill & Son allege that the termination was done for cause. They allege that, among other things, Mr. Mazanek was stealing gas and that is why he was fired.
[6] The trial of this matter took place over three days. The plaintiff called only one witness, Mr. Mazanek. Bill & Son called three witnesses: Alex Pankratov, another Bill & Son employee who works at the Greater Toronto Airport Authority (“GTAA”); Johannes Keller, the general manager at Bill & Son; and Christine Santos, the financial controller at Bill & Son.
Background
[7] Bill & Son is a small company engaged in the towing business, headquartered in Etobicoke.
[8] Mr. Mazanek started working for Bill & Son as a tow truck operator on or about May 1, 2012. He worked for Bill & Son until October 2017, when he was terminated without notice or any pay in lieu of notice.
[9] Bill & Son has the contract to provide tow truck services at the GTAA and has had this contract since 2012. Prior to Bill & Son obtaining the GTAA contract, the contract was held by Abrams Towing. The four employees who worked at the GTAA for Abrams Towing were hired by Bill & Son when they obtained the GTAA towing contract. Mr. Mazanek worked from 1999 to 2012 for Abrams Towing as an employee, performing the same duties as he subsequently performed for Bill & Son.
[10] There were four drivers who worked Bill & Son’s GTAA contract during the relevant time period. These drivers would tow abandoned or illegally parked cars at the GTAA to the GTAA compound. The drivers would also release the towed cars from the compound to the owners when they paid the required fine. They provided other services to GTAA customers for a fee, such as boosting customers’ cars and assisting customers who had lost their car keys. Further, when a GTAA customer ran out of gas on the premises, the drivers would leave the site to fill a jerry can with gas and bring it back to the customer who would be charged for the gas.
[11] The drivers were required to put gas in the tow trucks, as needed. There was one company gas card that was used to refill Bill & Son’s tow truck vehicles at the GTAA. The gas card, used by all four drivers, required users to input the mileage of the vehicle when a purchase was made. However, none of the drivers inputted the mileage when gas was bought until May 10, 2017.
[12] There was always one Bill & Son tow truck (the “main truck” or “main tow truck”) on service at the GTAA. At any given time, the Bill & Son main tow truck for GTAA service was driven by one driver. Sometimes there was a need for a second vehicle/driver (known as a “scooper truck”). The scooper truck was operated less than the main truck. The primary purpose of the scooper truck was to scare off unlicensed limo and taxi drivers from the GTAA.
[13] The drivers had regular shifts that they generally worked. Mr. Mazanek’s regular shifts were from 10 p.m. on Thursday to 10 p.m. on Friday, and 10 p.m. on Saturday to 10 p.m. on Sunday. However, the drivers would organize shift changes and coverage among themselves.
[14] Bill & Son operated the tow trucks on the GTAA premises under contract with GTAA. GTAA owns the compound and receives the revenues from the cars towed to the compound (which are collected by Bill & Son for the GTAA).
[15] Sometime in 2016 Bill & Son reviewed the fuel consumption for the GTAA main truck. Bill & Son was being asked to re-bid on the GTAA contract as it expired in 2017 and Ms. Santos was asked to determine whether it was profitable for the company and what the price point should be. During her review, she came across an issue with gas consumption. The main truck was going through an unusually high volume of gas as compared with other similar tow trucks operated by Bill & Son. Ms. Santos discussed this issue with Mr. Keller.
[16] Mr. Keller spoke with the drivers about the high gas consumption of the main truck. He was told by the drivers that the truck spent a lot of time idling. Mr. Keller testified that there was a drop in gas consumption after that conversation.
[17] There were no relevant employment policies at Bill & Son referenced during the trial.
[18] Mr. Mazanek was terminated without notice on or about October 15 or 16, 2017. On that same day, another of the Bill & Son tow truck operators who worked at the GTAA, Arik, was also terminated. Prior to their termination, both of Mr. Mazanek and Arik had been suspended for approximately two weeks without pay so that Mr. Keller and Ms. Santos could investigate.
[19] Mr. Keller terminated Mr. Mazanek over the phone. During the short telephone call, Mr. Keller did not explain to Mr. Mazanek why he was being terminated. Mr. Keller testified that he did not do so because he did not want to engage in a “he-said/she-said” confrontation. Ms. Santos testified that she did not confront Mr. Mazanek about the suspicious fuel transactions because she did not want to alert him to the fact that he was under investigation.
[20] Mr. Mazanek was not questioned in advance of his termination about the alleged fuel theft or any other allegations advanced by the defendant, nor had he received any official warnings from his employer.
[21] There was a decrease in fuel consumption after Mr. Mazanek and Arik were fired.
The Witnesses
[22] Mr. Mazanek was a straightforward witness. He was generally consistent in his evidence. The defendant alleges that Mr. Mazanek was not credible as he originally testified that he filed his tax returns in a timely manner, but later acknowledged that this was not true. I have taken this into account in the weight given to Mr. Mazanek’s evidence.
[23] Mr. Pankratov, another tow truck operator at the GTAA, was inconsistent in his evidence. His testimony struck me as contrived. I provide a few examples from the numerous inconsistencies in his evidence.
[24] When Mr. Pankratov was first asked whether he saw Mr. Mazanek steal gas using a jerry can, he said he saw him do it hundreds of times. Based on all the other evidence, this is highly implausible. He then said that he went with Mr. Mazanek to the gas station 15-20 times when he was on shift driving the scooper truck at the same time as Mr. Mazanek’s shift. Then, during cross-examination, Mr. Pankratov said that he saw him do so 5, 10 or 15 times, and that he sometimes came in early for his shift and saw Mr. Mazanek steal gas. He said that he and Mr. Mazanek would sometimes be in the same truck when he saw him take gas.
[25] Mr. Pankratov was also inconsistent as to when/how his shifts overlapped with Mr. Mazanek’s. One of Mr. Pankratov’s shifts was from Wednesday 10 p.m. to Thursday at 10 p.m., while (as noted above) Mr. Mazanek started his typical shift on Thursday at 10 p.m. Mr. Pankratov testified that he would go in early and suggested that this explained how their shifts would sometimes overlap. However, if Mr. Pankratov came in early for his shift this would be on Wednesday when Mr. Mazanek was not working.
[26] Finally, in cross-examination Mr. Pankratov said that he could not remember seeing Mr. Mazanek take gas in 2017 and that in the summer of 2017 he did not see him do so. Then, on re-examination he said that in the summer of 2017 he went with Mr. Mazanek one or two times to the gas station. As a result of the numerous inconsistencies in his evidence, I did not find Mr. Pankratov to be a reliable witness. Accordingly, I have given no weight to his evidence.
[27] Mr. Keller is the general manager at Bill & Son. He took over the full management responsibility in 2016 from “old Alex”. Mr. Keller was forthright and consistent in his evidence.
[28] Ms. Santos is the financial controller at Bill & Son and has been in this position for about nine years. She is not trained as an accountant but learned her skills on the job. She gave her evidence in a consistent and fair manner. I have given her oral evidence considerable weight. However, as indicated below, and for the reasons set out below, I have given very little weight to the summary of gas consumption chart she prepared.
Issues
[29] The following are the issues addressed by the court:
a) Was Mr. Mazanek terminated for cause?
b) Was Mr. Mazanek an employee, dependant contractor or independent contractor of the defendant?
c) If Mr. Mazanek was not terminated for cause, what are his damages?
Analysis
Was Mr. Mazanek terminated for cause?
[30] Bill & Son submits that Mr. Mazanek was terminated for cause. Bill & Son’s position is that there was a fundamental breakdown in the relationship, as Bill & Son alleges that Mr. Mazanek stole gas using the company credit card. Bill & Son also argues that Mr. Mazanek engaged in other conduct that entitled them to dismiss Mr. Mazanek for cause. Specifically, Bill & Son alleges that Mr. Mazanek was (i) leaving the site contrary to instruction; (ii) stealing from customers’ vehicles; (iii) allowing an unauthorized person behind the desk; (iv) failing to comply with direct orders to do roundabouts; and (v) towing off site privately and without authorization.
[31] Termination for cause has been described as the “capital punishment” of the employment relationship. In Geluch v. Rosedale Gold Association, 2005 23126 (ON SC), [2005] O.J. No. 2740 (“Geluch”), the court stated (at paras. 84 and 85):
“To decide whether misconduct constitutes just cause, a court must consider the nature of the misconduct and the consequences arising from the misconduct, within the totality of the employment context, including the nature and history of the employment relationship. In McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161 (S.C.C.) at para. 57 the Supreme Court of Canada outlined the proper approach as being a “contextual” one that:
Examines each case on its own particular facts and circumstances, and considers the nature and seriousness of the dishonesty in order to assess whether it is reconcilable with sustaining the employment relationship. Such an approach mitigates the possibility that an employee will be unduly punished by the strict application of an unequivocal rule that equates all forms of dishonest behavior with just cause for dismissal. At the same time, it would properly emphasize that dishonesty going to the core of the employment relationship carries the potential to warrant dismissal for just cause.
The test can thus be described as involving two steps: first, the employer must establish the employee’s misconduct on a balance of probabilities; second, the employer must establish that the nature or degree of misconduct warranted dismissal.”
[32] The defendant employer has the onus to prove that there was just cause for an employee’s termination on a balance of probabilities. As set out below, Bill & Son has not satisfied this onus.
(i) Theft of gas
[33] Bill & Son alleges that Mr. Mazanek stole gas from the company. Mr. Keller’s evidence was that theft was the reason for Mr. Mazanek’s termination.
[34] The only direct evidence of Mr. Mazanek stealing gas was from Alex Pankratov. As mentioned above, and for the reasons set out above, I have given no weight to Mr. Pankratov’s evidence.
[35] Christine Santos testified that she took information from the gas credit card usage and created charts. She added names to the chart to correspond with dates the four employees worked. At trial it became clear that her method of determining whose name to put on the chart beside a given gas purchase entry was not perfect. It was primarily based on emails (which were not in evidence) that were sent by Mr. Mazanek setting out who worked during the week for payroll purposes. Assuming that the employees worked their regular shifts, there are certain entries in the chart that are in question. For example, on the chart there are two entries made on Sunday March 19, 2017 at 11:26:03 p.m. and 11:26:24 p.m. Ms. Santos put Mr. Mazanek’s name on the chart as the driver who made the back to back fuel purchases. However, Mr. Mazanek’s shift finished on Sundays at 10 p.m. so it is unlikely he would have been working at that time.
[36] The issue with relying on the statements produced by Ms. Santos is that, although they show some irregularities in gas purchases, from the evidence there is no way to verify (1) whether the scooper truck was also on shift at the time of some of the irregularities and therefore both trucks were gassed up at once; and (2) whether Mr. Mazanek was in fact working on the day where Ms. Santos has noted that he was working (as the four tow truck operators would sometimes change shifts among themselves). Accordingly, I have given little to no weight to these statements.
[37] In his evidence, Mr. Mazanek stated that he did not steal any gas. When confronted with irregularities on the statement, his response was that there must have been another truck operating – the scooper truck. Given that the scooper truck would sometimes operate at the same time as the main truck, this is a perfectly logical explanation. There was also no log produced as to when the scooper truck was operating during the relevant period.
[38] The defendant points to the fact that Mr. Mazanek did not input the mileage when he filled up using the company gas card. However, as noted above, none of the four drivers inputted the mileage when using the company gas card until May 2017.
[39] When Mr. Pankratov brought the alleged gas theft to the attention of Ms. Santos and Mr. Keller, they investigated the use of the company gas card and attempted to determine who was using it and when. Based on their internal review, they concluded that Mr. Mazanek and/or Arik had been stealing gas. The two drivers were terminated at the same time. I agree with Mr. Mazanek’s submission that Bill & Son did not try to obtain better evidence of Mr. Mazanek’s involvement with any alleged fuel theft, either by installing an extra camera in the GTAA compound or by providing each driver with his own gas card.
[40] The allegation of theft was not brought to Mr. Mazanek. Mr. Mazanek was dismissed summarily without being given any opportunity to respond.
[41] As set out in Geluch at para. 98: “Employers may… have an obligation to properly investigate serious allegations, such as those of theft, fraud, or sexual harassment, to provide the employee with an opportunity to respond to any such allegations, prior to dismissing the employee”. In my view, this is one such occasion. Theft from an employer is a serious allegation. While the expectation for a small employer is not necessarily to conduct a full-fledged investigation, at a minimum, Bill & Son ought to have provided Mr. Mazanek with an opportunity to respond to this serious allegation.
[42] The fact that someone was likely stealing gas from the defendant and that it might have been Mr. Mazanek, or Alik, or someone else is not enough to establish cause for termination of employment.
[43] Based on the evidence, it is not possible to determine with any certainty whatsoever whether Mr. Mazanek, or Alik, or someone else stole gas from Bill & Son. For that reason, the assertion that this allegation constitutes just cause for his dismissal has not been proven by Bill & Son on a balance of probabilities.
(ii) Leaving the site and failing to do roundabouts
[44] Bill & Son submits that Mr. Mazanek was engaged in other activities that support their position that Mr. Mazanek was dismissed for cause.
[45] Under Bill & Son’s contract with the GTAA, the tow truck operators were expected to be mobile on the roadways and parking facilities at least 80% of the time. The other 20% of the time was generally to be spent performing other administrative duties at the compound. The GTAA contract required that there be a tow truck operator onsite to respond within 10 minutes.
[46] When cars located on the GTAA premises are towed, they are brought to the GTAA compound. For a car to be towed outside the GTAA, the driver was to contact Bill & Son’s main office, which would arrange for another truck to attend at the GTAA compound and tow the car.
[47] With regard to the requirement for drivers to be “out and about”, Mr. Keller’s evidence was that he received ongoing and clear instructions from the GTAA that the tow trucks were expected to be mobile on the premises 80% of the time, which was relayed to the GTAA staff. Mr. Keller’s evidence was that Mr. Mazanek would not comply and that on one occasion Mr. Mazanek told him that he should be paid more money for doing this task. Mr. Mazanek denied this. Ms. Santos’ evidence was that Mr. Mazanek had indicated that he did not want to do the roundabouts because it was boring. Mr. Mazanek said this never happened.
[48] Mr. Keller testified that in early spring 2017 he, John Olivera and Ms. Santos had a meeting with the GTAA and then convened a meeting with all four drivers at the compound. They reiterated that the GTAA was dissatisfied as the drivers were spending too much time at the compound and needed to be out and about on the GTAA roadways more. This was not a warning directed at any one driver, including Mr. Mazanek.
[49] Ms. Santos and Mr. Keller testified that they had received complaints from the GTAA that Mr. Mazanek was leaving the site frequently. The GTAA was able to track the tow truck using GPS. When Mr. Keller approached Mr. Mazanek about this, he said he was leaving the site to get lunch at a Polish restaurant on Bloor Street. Mr. Keller testified that he told Mr. Mazanek numerous times that he could not leave the site and could bring his lunch or buy it at a GTAA restaurant. Mr. Mazanek’s evidence was that he sometimes did leave the GTAA during his shift for lunch or to fill up the truck with gas.
[50] If it is assumed that Mr. Mazanek left the GTAA site and/or was not “out and about” enough, this in itself is not the type of egregious conduct that would amount to cause for dismissal absent official warnings by the employer to Mr. Mazanek in advance of any such termination. Mr. Mazanek was not given any formal warnings by his employer.
(iii) Theft from customers’ vehicles
[51] Bill & Son also alleges that Mr. Mazanek would break into customers’ cars and take items. Mr. Pankratov’s evidence was that Mr. Mazanek would take stuff he likes from cars on the compound – “tools”, “baby seat”, “anything”. As stated above, I have given no weight to Mr. Pankratov’s evidence.
[52] In the Bill & Son office there was a safe that was locked with a key and a combination. The safe had a large one-way opening at the top so staff could drop in any items that were inadvertently left behind by customers. Mr. Keller’s evidence was that after terminating Mr. Mazanek and Arik, he and Ms. Santos brought a locksmith to open the safe. Mr. Keller testified that Mr. Mazanek and Arik had the key. Mr. Mazanek’s evidence was that he did not know the code to the safe and did not have a key.
[53] When Mr. Keller and Ms. Santos had the safe opened by the locksmith, inside they found a half-empty bottle of vodka, a camera, a video camera, and original drivers’ licenses that were stacked on a shelf. Mr. Keller stated that the placement of the items in the safe was such that they were not dropped through the safe’s top slot. There was no evidence as to which of the four drivers working at the GTAA compound put these items in the safe.
[54] Mr. Mazanek’s evidence was that when cars were in the compound for more than 60 days, “Little John” (his direct boss) would ask the drivers to retrieve ownership papers from the vehicles so that Bill & Son could track down the owner’s information from the Ministry of Transportation.
[55] Similar to the allegations of theft of gas, this is a serious allegation. Mr. Mazanek was not given an opportunity to respond to this allegation by his employer. In addition, his evidence was that he could not access the inside of the safe.
[56] Based on the evidence, it is not possible to determine whether Mr. Mazanek, or Alik, or someone else placed those items in the safe. It is also not clear whether such items were left behind by customers or taken from cars. This allegation has not been proven by Bill & Son on a balance of probabilities, and it cannot constitute just cause for Mr. Mazanek’s dismissal
(iv) Towing offsite
[57] Bill & Son alleges that Mr. Mazanek was using Bill & Son’s truck to tow vehicles privately and earn income. Bill & Son relies on Mr. Pankratov’s testimony that Mr. Mazanek did private towing jobs on a number of occasions and would brag to him and show him the cash he allegedly earned. Mr. Pankratov also testified that he did private towing jobs, of which Bill & Son was aware. However, as stated above, I have given no weight to Mr. Pankratov’s evidence.
[58] Bill & Son further relies on Ms. Santos’ evidence that on one occasion she received a call from a Bill & Son’s tow truck operator who saw one of the GTAA tow trucks offsite towing a scooper limousine to a repair shop. However, Mr. Mazanek was not at the repair shop when Ms. Santos went there, nor was the GTAA tow truck. The tow truck operator who allegedly saw the GTAA vehicle towing the scooper limousine was not called as a witness. Mr. Mazanek stated that he did not tow the vehicle in the picture taken by Ms. Santos.
[59] Mr. Mazanek testified that there were airport duty managers, parking operators and others who would direct the drivers to tow cars off the premises. Section 1 of the Scope of Work for Bill & Son at GTAA provides that towing services may be requested by a number of different GTAA persons, including airport duty managers, public security officers and parking operator. However, based on the Scope of Work document and Mr. Keller’s evidence, generally vehicles at the GTAA are to be towed only to the GTAA compound. The Scope of Work provides that towing outside the airport is at the discretion of the Manager, parking and Groundside Operations or delegate. Mr. Mazanek testified that these airport personnel would instruct him to tow vehicles offsite, and that, while he had once protested, he stopped doing so because he had been overruled by Bill & Son’s managers over the years. Mr. Mazanek testified that he once picked up a limousine stranded on Highway 427 at the request of a GTAA staff member.
[60] There was clearly some towing done by Mr. Mazanek and the other drivers offsite. However, I accept Mr. Mazanek’s evidence that he was directed to do so by various persons of authority at GTAA. Further, Mr. Mazanek was not given a formal warning with regard to private towing, nor was he confronted with this allegation.
(v) Other allegations
[61] Bill & Son raises various other allegations of one-off incidents, such as permitting a non-employee behind the employee area at the office. However, similar to the other allegations, there was no action taken by the employer, such as the issuance of any formal warnings.
[62] Having regard to all of the allegations, Bill & Son has not established on a balance of probabilities that there was misconduct on the part of Mr. Mazanek that would provide just cause for his dismissal. Bill & Son did not provide any formal warnings to Mr. Mazanek related to the various issues raised pertaining to his work performance or his alleged failure to follow instructions, etc. On the more serious allegations of theft, Bill & Son summarily dismissed Mr. Mazanek without giving him the opportunity to respond.
Was Mr. Mazanek an employee, dependent contractor or independent contractor of the defendant?
[63] As I have determined that Bill & Son has not established cause for the termination of Mr. Mazanek, I next consider the nature of the relationship between Mr. Mazanek and Bill & Son.
[64] Mr. Mazanek did not have a written agreement with Bill & Son.
[65] Bill & Son submits that Mr. Mazanek was an independent contractor. In this regard Bill & Son relies upon the fact that it paid Mr. Mazanek’s company (2329614 Ontario Corp.), not Mr. Mazanek himself. The company would invoice Bill & Son weekly based upon Mr. Mazanek’s hours worked, and Bill & Son paid this amount to the corporation. Bill & Son also points to the fact that Mr. Mazanek worked with minimal supervision by Bill & Son management. It is also clear that although the four GTAA drivers had shifts they regularly worked, they would negotiate their schedules among themselves, including covering shifts for vacations.
[66] Mr. Mazanek’s evidence was:
• He drove Bill & Son’s branded truck and wore its uniform;
• He did not use any of his own tools;
• His wage was based on an hourly rate and he could only earn more money if he worked more hours;
• His duties did not change when Abrams Towing was replaced by Bill & Sons for the GTAA contract. He had been an employee at Abrams Towing; and
• Bill & Son asked him to obtain a company name when he started to work for them. Mr. Mazanek testified that when he started working for Bill & Son the drivers were told to start a company so they could get paid.
[67] As noted above, Bill & Son had a GPS in the truck so that Mr. Mazanek could be tracked at all times.
[68] In 671122 Ontario Ltd. v. Sagaz Industries Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, the Supreme Court of Canada set out a non-exhaustive list of factors which should be taken into consideration to determine the real relationship between the parties (at para. 47):
“Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.
[69] This analysis largely turns on one central question: whose business is it? As stated in Braiden v. La-Z-Boy Canada Limited, 2008 ONCA 464, 294 D.L.R. (4th) 172 (at para. 34):
“In many ways, the question posed at the end of the fifth principle – whose business is it? – lies at the heart of the matter. Was the individual carrying on business for him or herself or was the individual carrying on the business of the organization from which he or she was receiving compensation?” (emphasis added)
[70] Based on the evidence, despite Mr. Mazanek having been paid through a company, he was employed by Bill & Son. He earned hourly wages, he drove their branded truck and wore their uniform (the tools belonged to Bill & Son) and his whereabouts were tracked by GPS. Most importantly, it was clearly Bill & Son’s business.
[71] As an employee, Mr. Mazanek would also have certain entitlements under the Employment Standards Act, 2000, S.O. 2000, c.41 (the “ESA”).
If Mr. Mazanek was not terminated for cause, what are his damages?
[72] As Bill & Son has been unable to establish on a balance of probabilities that Mr. Mazanek was terminated for cause, Mr. Mazanek is entitled to damages.
[73] The well-known case of Bardal v. The Globe & Mail Ltd. (1960) 1960 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.J.) sets out the factors for the court to consider to determine the appropriate notice period:
“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 qualifications of the servant.”
[74] Mr. Mazanek submits that he is entitled to damages based on a nine-month notice period less income earned in mitigation. Bill & Son submits that 4 months would be appropriate.
[75] Mr. Mazanek was employed by Bill & Son for 5.5 years, he is 44 years old and was earning $44,928 per year as a tow truck operator when he was dismissed. I agree with Mr. Mazanek that his experience with Abrams Towing at the GTAA prior to his being hired by Bill & Son made it such that he was a valuable employee in assisting a seamless transition for GTAA from one provider to another. However, as correctly noted by Bill & Son, Bill & Son was not a successor employer as there was not a sale of a business from the prior employer to the defendant.
[76] In my view, taking into account the Bardal factors, an appropriate notice period is six months.
[77] As I have determined that Mr. Mazanek was an employee of Bill & Son, he is also entitled to damages on account of vacation pay under the ESA. Mr. Mazanek claimed damages for accrued but unpaid vacation. Bill & Son argues that if there was any vacation pay due and owing it would only be due and payable two years preceding the commencing of the action. Any claimed amount preceding that date would be statute barred under the Limitations Act. I agree.
[78] Bill & Son has the onus of showing that the plaintiff has not mitigated his damages. In terms of mitigation, Mr. Mazanek testified that he started to look for other employment on the Monday immediately following his termination. His evidence was that he was looking on the internet, through platforms such as kijiji, for employment opportunities. Mr. Mazanek only produced one document in respect of an enquiry during the relevant time period. Mr. Mazanek obtained other employment and earned $15,585.75 between March and September 2018. Given that Mr. Mazanek found another position approximately five months after termination, and his evidence that he started searching almost immediately for new employment, Bill & Son has not satisfied me that Mr. Mazanek failed to mitigate his damages.
[79] Mr. Mazanek also claims that he is entitled to punitive and bad faith damages. I disagree. Mr. Mazanek cites Kaniewski v. Key Property Management (1986) Inc., 1992 CarswellOnt 963 in support of his position. That case also involved an alleged theft against an employee but is distinguishable as the court in Kaniewski determined that another individual was the actual thief. Although I have determined that Bill & Son did not adequately investigate Mr. Mazanek before terminating him as they did not give him the opportunity to respond to the harsh allegations against him, the question of who was stealing gas remains unresolved, as does the question of whether someone was stealing items from customer cars. Bill & Son acted hastily in not giving Mr. Mazanek the opportunity to respond to the serious allegations before firing him. However, I am not of the view that Bill & Son acted in bad faith.
Disposition and Costs
[80] Bill & Son has not established that there was just cause for Mr. Mazanek’s termination on a balance of probabilities. Mr. Mazanek is entitled to damages as follows:
• Six months’ pay in lieu of notice: $22,464.00 (based on annual earnings of $44,928 for 2016)
• Vacation pay for the 2 years preceding the commencement of the action, prior to Mr. Mazanek’s termination: $2,592.00;
• Less income earned in mitigation from March 2018 to the end of the notice period in April 2018: $5,195.25 (based on the $15,585.75 Mr. Mazanek earned between March and September 2018, a period of 6 months);
• Total damages: $19,860.75.
[81] Bill & Son’s counterclaim is dismissed.
[82] Mr. Mazanek is entitled to costs. If the parties are unable to agree on costs by July 23, 2021 they may deliver written submissions on costs by delivery to my judicial assistant and by uploading to Caselines, according to the following schedule: (i) Mr. Mazanek, shall, on or by August 9, 2021, serve and file his Cost Outline, together with any supporting material and his written submissions of no more than three pages with authorities hyperlinked; (ii) Bill & Son shall, on or by August 23, 2021, serve and file its responding written submissions of no more than three pages with authorities hyperlinked.
J. Steele J.
Released: June 23, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADAM MAZANEK
Plaintiff
– and –
BILL & SON TOWING LTD.
Defendant
REASONS FOR JUDGMENT
J. Steele J.
Released: June 23, 2021