Court File and Parties

COURT FILE NO.: CV-20-00639890-0000

DATE: 2021-11-16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: MICHAEL EWACH, Plaintiff/Moving Party

AND: WHITEOAK FORD LINCOLN SALES LIMITED o/a WHITEOAK FORD LINCOLN, Defendant/Responding Party

BEFORE: S.F. Dunphy J.

COUNSEL: Gurlal Kler and Stephanie McDonald, for the Plaintiff/Moving Party Trent Flack and the Plaintiff/Moving Party Michael Ewach

Alvin W. Leung, and Ben Brillantes, for the Defendant/Responding Party

HEARD at Toronto (Video): October 29, 2021

REASONS FOR DECISION

[1] This case considers the period of reasonable notice applicable to the without cause termination of the employment of a 61-year-old plaintiff with less than two years’ service in a pure-commission sales position.

[2] This case was argued at the same time as Flack v. Whiteoak Ford Lincoln Sales Limited, 2021 ONSC 7176. Flack involved the same employer and raises a number of very similar issues. In each case, the employee was of a similar age (61 years at the time of termination of employment), the COVID pandemic struck and began to impact their job search prospects some weeks after the termination of their employment and they had a relatively brief period of service with the employer. To avoid duplication, the parties adopted the legal arguments made on the common issues in the prior case to this one. Accordingly, the decision I am releasing today on the Flack matter should be read as one with this decision subject of course to the different circumstances discussed in each.

(a) Character of employment

[3] Mr. Ewach was employed as a salesperson. He earned approximately $60,000 per year plus benefits including a vehicle allowance and paid vacation of three weeks.

[4] There is no suggestion that Mr. Ewach had any managerial or supervisory responsibilities. He was one of about fourteen salespeople working at the dealership in a similar role.

[5] As is common in the auto sales business, Mr. Ewach’s remuneration was 100% dependent upon sales performance (other than for his benefits). This type of remuneration formula suggests relatively little in the way of impediments facing employees from seeking the sales platform that maximizes their opportunity to earn since results rather than seniority are the primary driver of pay. A departing employee loses nothing in the way of accumulated seniority while the hiring employer takes less risk in the form of higher pay commitments to a new hire with seniority. All of this going no further than the common-sense conclusion that the character of employment in this case does not appear to point the needle towards a longer notice period.

(b) Length of service

[6] Mr. Ewach was employed by the defendant between April 20, 2018 until December 4, 2019 – a period of about 19. 5 months. He was on a leave of absence for a portion of this time but no party suggested that anything turns on that circumstance for the purposes of determining the period of reasonable notice.

[7] There is no evidence in this case of the presence of any factors that might tend to prod the analysis to stray too far from the range of notice period that the plaintiff’s comparatively short period of service would otherwise tend to suggest. There is no suggestion that he was recruited away from long-term and stable employment for example. His position was entirely commission based (fixed payment per unit of sales) unlike other fields where employers might be expected to have to pay a premium for an experienced hand resulting in a potentially smaller and more selective field of job prospects. The Court of Appeal decision in Love v. Acuity Investment Management Inc., 2011 ONCA 130 cautions against undue weight being placed upon short service without examining the other relevant factors. It does not suggest that length of service ought to receive little weight – to the contrary if found that “short service is undoubtedly a factor tending to reduce the appropriate length of notice” (at para. 19). Absent other factors that would tend to push towards a lengthier notice period, a short period of service does tend to push the needle towards a lower rather than higher notice period.

(c) Age of employee

[8] Mr. Ewach was 61 years of age at the time. I was asked to make assumptions that this factor alone – without more – requires a lengthier notice period than might otherwise be the case. I cannot agree with that bald statement.

[9] Age is a factor but the impact of that factor is one that must be assessed in combination with all other relevant factors and in the particular circumstances of the individual in question. Age may be a desirable attribute for some positions and an impediment for others. The job requirements of a Walmart greeter and a bicycle courier suggest quite different conclusions when it comes to the impact of age to pick two relatively extreme examples.

[10] There is simply nothing in the evidence that persuades me that there was any reason to believe that the plaintiff’s age would be a particularly material impediment to his job prospects at the time of the termination of his employment.

(d) Availability of similar employment

[11] Neither side presented much in the way of detailed evidence concerning the availability of similar employment. Although argued together, I was not asked to apply the evidence from the Flack case to this case even if my discussion of legal principles is applicable to both.

[12] The defendant’s affiant, Ms. Jakobs, suggested that “there was no reason to believe Ewach would have any trouble finding comparable employment”. Mr. Ewach’s own evidence contains no indication of why he has experienced difficulty in finding a job beyond noting that the pandemic hampered his efforts. The pandemic began to garner some headlines through February 2020 but did not snowball into a full lock-down until mid-March 2020. By that time, Mr. Ewach had been on the job market for three months although I suspect that at least some of the holiday season was very likely down-time from the point of view of looking for a new job with decision-makers often away from work.

[13] I cannot find any basis to suppose that Mr. Ewach faced any particularly adverse headwinds attributable to his age or the market conditions prevailing when his employment was terminated and he had to enter the employment marketplace.

(e) Period of reasonable notice

[14] Mr. Ewach claims a notice period of ten months ought to be applied in this case placing particular emphasis on his age and the impact of COVID upon his job prospects. The defendant submits that a notice period of two months less amounts already received would be reasonable in all of the circumstances.

[15] Mr. Ewach remains unemployed at this time. The defendant has challenged the adequacy and reasonableness of his mitigation efforts, acknowledging that it bears the onus in that regard. Given the claimed notice period of ten months, I shall not be examining Mr. Ewach’s efforts after that time frame (ending early September 2020).

[16] The defendant challenges the reasonableness of the plaintiff’s mitigation efforts. In the present case, Mr. Ewach produced only a single sheet of paper with handwritten notes on a spreadsheet containing little to no information about his efforts. The spreadsheet outlined fourteen contacts made. No information was provided as to the dates of those contacts, the name of the person contacted, whether an interview was conducted or a resume simply dropped off and whether there was any follow-up. Some contacts appear to have been in person, others via email. It cannot be determined what portion of efforts were made in the almost three months before the pandemic hampered his efforts and what efforts came afterwards.

[17] The burden of establishing unreasonable mitigation lies with the defendant. The defendant’s position is that the information provided is so entirely deficient as to permit an inference to be drawn that the efforts were indeed perfunctory and inadequate. It notes that Mr. Ewach had experience and qualifications in other industries, possessing a mortgage licence and there is no information as to whether efforts to secure employment in that sector were investigated.

[18] Were I to have concluded that a lengthier notice period applied to the termination of Mr. Ewach’s employment, I should have been more receptive to the plaintiff’s arguments regarding mitigation. A single barely legible record of job search efforts without more hardly provides comfort that the plaintiff in question was being sufficiently proactive and diligent. However, I do not conclude that mitigation was a material factor given the relatively short notice period I have found applicable here.

[19] As in Flack, I cannot find that the period of reasonable notice is extended by reason of subsequent events such as the pandemic, particularly where that subsequent event did not really begin to assert itself in earnest until after the notice period I have found applies in this case would at all events have expired.

[20] In all of the circumstances, I find that a notice period of 2.5 months is reasonable in all of the circumstances present here. This is a range consistent with Mr. Ewach’s relatively brief tenure with the defendant. I have found no factors tending to suggest that Mr. Ewach’s case ought to lie outside of that range. Neither his age, the character of his employment nor the market for his skills in general appear to suggest that a longer period of time would have been reasonably necessary. I have adjusted the notice period upward to a small extent to reflect the challenges conducting a job search around the holiday schedules of decision-makers very likely would have entailed.

[21] As with the Flack case, the parties advise me that they have agreed on the means to reduce my decision on the applicable period of reasonable notice to a dollars and cents judgment so I shall not comment further regarding the application of this period to the claimed benefits or the amounts already received. The directions given in that case regarding settling the form of the judgment and costs apply to this case as well.

S.F. Dunphy J.

Date: November 16, 2021