COURT FILE NO.: CV-21-00660236

DATE: 20210927

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ZDENEK DIZKA Plaintiff

AND:

VANTAGE MACHINE SHOP LTD. Defendant

BEFORE: Mr. Justice Chalmers

COUNSEL: D. Vaughan, for the Plaintiff

HEARD: In writing

ENDORSEMENT

Overview

[1] This action arises out of the termination of the Plaintiff, Zdenek Dizka’s employment with the Defendant, Vantage Machine Shop Ltd..

[2] Mr. Dizka was employed as a machine operator. He commenced employment with the Defendant in September 1988. On June 3, 2020, the Defendant advised Mr. Dizka that his employment was terminated without cause. He was provided with twelve months of working notice of termination. The termination was effective June 3, 2021. At the time the Plaintiff received notice of the termination of his employment, Mr. Dizka was 60 years of age. He was earning $50,327.46 per annum.

[3] Mr. Dizka was on a medical leave of absence when his employment was terminated. He suffered a right parietal stroke on April 7, 2020. He did not receive any employment income from the Defendant during his medical leave. He states that he was unable to look for other employment because of his medical condition.

[4] The Plaintiff commenced the action by Statement of Claim issued on April 9, 2021. The Claim was served on the Defendant on April 12, 2021. On April 13, 2021, Jeff Hopkins of Grosman Gale Fletcher Hopkins LLP e-mailed counsel for the Plaintiff to notify him that the Defendant was in receipt of the Statement of Claim. The Defendant failed to file a Statement of Defence. The Defendant was noted in default on May 13, 2021.

[5] The Plaintiff brought this motion for default judgment. The matter came before me in Civil Practice Court on August 24, 2021. I ordered the Plaintiff to serve the Motion Record on the Defendant, by August 31, 2021. The Defendant had until September 15, 2021 to notify counsel for the Plaintiff if it intends to respond to the motion. The motion record was served on the Defendant on August 25, 2021, by sending a copy by e-mail to Jeff Hopkins, the lawyers for the Defendant. There has been no response from the Defendant.

Analysis

[6] The Defendant was noted in default. The Defendant chose not to defend the action and has not contested liability: Charlebois v. Charlebois (by his Estate Trustee), 2020 ONSC 5480, at paras. 13-14. Pursuant to R. 19.02, the Defendant is deemed to admit the truth of all allegations of fact made in the Statement of Claim. The Defendant, through its counsel, has been served with the default judgment motion materials. I am satisfied that the fact the claim is about to be considered by the court for the purpose of issuing judgment, has been brought to the Defendant’s attention: Casa Manila Inc. v. Iannuccilli, 2018 ONSC 7083, para. 14 -17.

[7] The following facts are alleged in the Statement of Claim and are deemed to be admitted by the Defendant:

a. The Plaintiff is a 60-year old Ontario resident;

b. He was employed by the Defendant for approximately 30 years;

c. He was employed as a machine operator;

d. His annual remuneration included a salary of $50,327.46 plus enrollment in the Defendant’s comprehensive benefits plan and 6% vacation pay;

e. In April 2020, the Plaintiff commenced a medical leave of absence;

f. On June 3, 2020, the Defendant advised the Plaintiff that it was terminating his employment without cause. The termination of the employment was effective June 3, 2021; and

g. The Plaintiff has not worked in any capacity since he received notice of termination.

[8] The Plaintiff argues that given his age, ongoing medical condition and the COVID-19 pandemic there are limited comparable employment opportunities for him. He seeks 24-months pay in lieu of reasonable notice of termination.

[9] The factors to be considered in cases of wrongful dismissal are set out in Bardal v. The Globe and Mail, 1960 CanLII 294 (ONSC).

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. at para. 21.

[10] Here, the Plaintiff was employed for over 30 years with the Defendant. He was 60 years of age and disabled, at the time of the termination of his employment. There is no evidence that the Plaintiff had any management responsibilities. The availability of similar employment is limited because of the Plaintiff’s disability. I am satisfied, having regard to the Bardal factors, that a notice period of 24 months is warranted in the circumstances.

[11] I am satisfied that because of his disability, the Plaintiff was unable to work during the working notice period and could not mitigate his damages. In Sills v. Children’s Aid Society of the City of Belleville, 2001 CanLII 8524 (ON CA), 53 O.R. (3d) 577 (CA), the plaintiff was terminated from her employment due to an organizational restructuring. She was provided with 14.5 months of working notice. The Plaintiff became disabled 2½ months into the working notice period. The Plaintiff was not paid after she stopped working because of her disability. The Court of Appeal held that an employee who is wrongfully dismissed without adequate notice of termination is entitled to damages in lieu of reasonable notice. A disabled employee continues to be entitled to damages during the notice periods even if the employee is disabled and lacks the ability to mitigate: para. 38.

[12] There is evidence before the court that the Plaintiff’s annual salary at the time of the termination of his employment was $50,327.46. Therefore, the Plaintiff is entitled to damages of $100,654.93 for salary in lieu of notice.

[13] The Plaintiff is seeking loss of the benefit entitlement in the amount of $10,065.49. This is 10% of the salary during the notice period. The Plaintiff is entitled to compensation for his lost benefits: Paquette v. TeraGo Networks Inc., 2016 ONCA 618, at para. 16. He has not put forward evidence with respect to the value of the lost benefits. I expect the Plaintiff is relying on caselaw that attributes a percentage to the value of the benefits without providing a rationale for the percentage chosen: Dussault v. Imperial Oil Limited, 2018 ONSC 4345, at para. 52.

[14] Here, I have no basis to determine whether 10% of the Plaintiff’s salary is a reasonable amount for the benefits. I note that in the Statement of Claim, the Plaintiff did not seek a specific amount for the lost benefit entitlement. The Plaintiff stated that particulars of the loss of benefit claim will be provided prior to, or at trial.

[15] The Plaintiff is also seeking unpaid vacation pay over the statutory notice period. The Plaintiff pleads that the vacation pay is 6% of the salary. The Plaintiff seeks payment of vacation pay during the statutory notice period in the amount of $464.56. In the motion for default judgment, the Plaintiff did not set out how this figure was calculated.

[16] The Plaintiff is also seeking payment of his costs of the motion and the action. The Plaintiff did not provide a Bill of Costs.

Disposition

[17] I find that the Plaintiff is entitled to damages for wrongful dismissal. The reasonable notice period is 24 months.

[18] I award damages of $100,654.93 for salary in lieu of notice. With respect to the claim for loss of benefits, vacation pay and costs, I adjourn this motion for a period of 20 days to allow the Plaintiff to provide the following:

a. Evidence with respect to the value of the benefits;

b. Calculation of the vacation pay; and

c. The Bill of Costs.

[19] I remain seized.

DATE: September 27, 2021