Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Blair Lewis, Plaintiff
AND:
Blue Star Ford Lincoln Sales Ltd., Defendant
BEFORE: Justice D.A. Broad
COUNSEL: Dennis Touesnard, for the Plaintiff
Michel Castillo, for the Defendant
HEARD: September 16, 2021
ENDORSEMENT
Background
1The plaintiff (“Lewis”) was employed by the defendant (“Blue Star”) as what he characterized as its “Financial Services Manager” and what Blue Start characterized as its “Business Manager (F.&I.)” for 10.5 years. By letter dated October 29, 2020 (the “termination letter”) Blue Star terminated Lewis’ employment effective November 6, 2020. The termination letter stated that Lewis’ dismissal was deemed “without cause.” In addition to one week of working notice, Lewis received an additional $23,886 as pay in lieu of notice.
2In correspondence responding to a letter from Lewis’ lawyer demanding that additional pay in lieu of notice be paid, Blue Star took the position that, although Lewis was “officially terminated without cause,” it had substantial evidentiary support for cause for his termination and there was therefore no justified basis for Lewis’ claim for additional compensation.
3By Statement of Claim issued under the Simplified Procedure provided in rule 76 of the Rules of Civil Procedure Lewis brought action against Blue Star seeking damages for wrongful dismissal in the sum of $146,428.55 plus lost value of benefits for 16 months in an amount to be particularized at trial. The Statement of Claim asserted that Lewis was entitled to reasonable notice of termination of 16 months.
4Blue Star delivered a Statement of Defence in which it pleaded the following:
(a) Blue Star admitted that it terminated Lewis’ employment effective November 6, 2020 on a without cause basis;
(b) Blue Star paid Lewis amounts above his entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41;
(c) under the circumstances Lewis ought to be entitled to only the minimum under the Employment Standards Act;
(d) alternatively, if Lewis suffered damages, he failed to mitigate his damages;
(e) in the further alternative, there was sufficient cause to warrant the termination of Lewis’ employment for cause, consisting of the following:
(i) Lewis was unable and/or refused to perform his job duties;
(ii) Lewis was harassing and abusive to employees and staff;
(iii) Lewis was insubordinate and wilfully disobedient;
(iv) Lewis neglected his employment duties.
(f) During the course of his employment Lewis received verbal and written warnings for uncooperative and unprofessional behaviour, written profanity on company documents, bullying behaviour, negative demeanour, abrasiveness, and unwillingness to work as a team.
Motion for summary judgment
5Lewis brought a motion for summary judgment pursuant to rule 20.04 of the Rules of Civil Procedure on the ground that there are no genuine issues requiring a trial. Lewis seeks a declaration that he was wrongfully terminated by Blue Star, damages for lost wages and bonus in the sum of $146,428.55 and the lost value of his benefits for a period of 16 months, together with prejudgment and post judgment interest.
Principles Governing Motions for Summary Judgment
6The basic principles governing motions for summary judgment, as laid out in rule 20 of the Rules of Civil Procedure and explained in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, are well known and there is no controversy between the parties on those basis principles.
7Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if it is satisfied that there is no issue requiring a trial. This will be the case where the summary judgment motion process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure.
8If the court finds that there are genuine issues requiring a trial and the record on the motion is insufficient to permit the determination of the genuine issues requiring a trial, it must consider whether the issues can be decided using the fact-finding resources available under rule 20.04(2.1) and (2.2). These resources include weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.
9The party responding to a motion for summary judgment is required to put its “best foot forward” and the court is entitled to assume that the evidence led on the motion for summary judgment will be the evidence at trial.
Evidence on the Motion
The following is a summary of the affidavit evidence led by the parties on the motion. The summary is restricted to factual assertions made by the affiants and does not include argument and position statements included in the affidavits.
A) Evidence of the Plaintiff in chief
10In his affidavit in support of the motion Lewis deposed inter alia, to the following:
(a) he was hired by Blue Star in April 2010 pursuant to an oral contract of indefinite duration. There is no written provision limiting his entitlements on termination;
(b) by letter dated October 29, 2020 he was terminated effective November 6, 2020 on a without cause basis;
(c) on the date of termination he was 47 years of age and had worked continuously for Blue Star for approximately 10 and one half (10.5) years as Blue Star’s Financial Services Manager;
(d) in his role as Financial Services Manager he was responsible for vetting applications for credit, arranging credit for potential customers, managing the sales department insofar as the credit worthiness of potential purchasers was concerned, meeting with customers to finalize the financing of any purchase, and selling additional warranties and related services to customers;
(e) he was paid on a commission basis, based on the volume of sales, the number of credit facilities he assisted in placing with banking partners and earned commissions on the sale of extra warranties and related products;
(f) in 2018 he earned $114,709 as employment income from Blue Star, $127,735.91 in 2019, and $88,299.82 in 2020 to November 7, excluding the payment in lieu of notice. He was on track to earn approximately $120,000 in 2021;
(g) he also participated in a comprehensive group benefit plan including drug coverage, dental, medical equipment, and paramedical, emergency out-of-province treatment and travel assistance, coverage for registered nursing hospital room coverage, long-term disability, life insurance and accidental death and dismemberment coverage;
(h) he was given one week working notice and was paid an additional $23,886 by Blue Star as pay in lieu of notice;
(i) during his termination meeting with Blue Star General Manager of Sales Shayne Coulliard (“Coulliard”) he was given no indication that the termination had anything to do with his performance. Coulliard told him “it was not working anymore” or words to that effect. A couple of days later Kyle Kowtaluk (“Kowtaluk”), Dealer Principal of Blue Star, told him “we decided to make a change” or words to that effect;
(j) the first time that his performance was ever raised by Blue Star was in response to a demand from his lawyer that he be paid pay in lieu of notice commensurate with his age, experience and character of his employment;
(k) he has made diligent efforts to mitigate his damages and began doing so almost immediately following his termination;
(l) he was successful in obtaining new employment with Demeyere Chrysler commencing March 1, 2021 as its Financial Service Manager. His compensation structure is commission based. Due to the lower sales volume of his new employer, he is expecting to earn significantly less than he did with Blue Star.
B) Evidence of the Defendant
11In response to Lewis’ motion Blue Star filed affidavits from each of Kowtaluk, Sharon Featherstone (“Featherstone”) VP of Operations and Marketing, and Coulliard.
12Kowtaluk deposed in his affidavit, inter alia, to the following:
(a) he met with Lewis to discuss the need to get $2000 average per deal as part of his duties and responsibilities as Business Manager (F. & I.);
(b) a representative of a company called “Vehicle Armour” met monthly with finance and insurance staff, including Lewis, to review their performance;
(c) he took the finance and insurance team to both Halifax and Edmonton for training and to learn from other high-performing dealers;
(d) Lewis consistently failed to make his target that was an integral part of his job and failing to do so despite ample support and training was tantamount to incompetence for the role.
13In her affidavit Featherstone deposed, inter alia, to the following:
(a) Lewis was informed that his employment with Blue Star was terminated in a meeting with Coulliard and herself on October 29, 2020;
(b) the meeting was brief. Featherstone explained the decision to Lewis, stating that Blue Star was terminating the employment relationship. She provided Lewis with a letter outlining the termination and read it to him;
(c) she recalled Coulliard saying words to the effect of “it is just not working out” and “we have to move in another direction”;
(d) Lewis was given pay in lieu of the statutory minimum notice under the Employment Standards Act of eight weeks, plus one week working notice, and two additional weeks in lieu of notice.
14In his affidavit, Coulliard deposed, inter alia, to the following:
(a) although there is no written contract encompassing all aspects of the employment relationship between Blue Star and Lewis, there existed both written expectations and implied responsibilities;
(b) as of September 1 2020 Lewis was employed with the title “Business Manager (F. & I.)” (which means “finance and insurance);
(c) although the job title included the word “manager,” Lewis had no management responsibilities. His employment was more in the nature of sales;
(d) Lewis earned employment income of $114,709.38 in 2018, $127,735.91 in 2019, and $119,965.46 in 2020. He also participated in a group benefits plan;
(e) there were significant performance issues in Lewis’ employment including 1. insubordination (being consistently rude to Coulliard, making disparaging comments about customers, and refusing to correct his behaviour), 2. failing to meet sales targets of $2000 per deal on a consistent basis, 3. displaying harassing and bullying behaviour to other staff members and slamming doors and drawers in anger, and 4. writing profanity on a company document on one occasion;
(f) he gave Lewis a written warning on December 11, 2018 regarding written profanity on company documents and his unwillingness to work as a positive and productive member of the team. The letter provided that a pattern of similar conduct will lead to a three-day suspension and should similar conduct occur following a suspension, Lewis would be terminated from his position;
(g) on September 9, 2020 he gave Lewis another written warning respecting his negative demeanour and abrasiveness towards other employees. The letter stated that in the future a pattern of similar conduct by Lewis will lead to dismissal from employment;
(h) in recognition of Lewis’ years of service and considering the challenges associated with the Covid-19 pandemic, Blue Star offered to terminate Lewis’ employment on a without cause basis as a respectful gesture in recognition of his tenure and professional relationship;
(i) as at November 2020 there were approximately 30 finance and insurance jobs being advertised online with the majority within the commuting distance for which Lewis was accustomed;
(j) on or about January 31, 2021 Lewis’ spouse posted a picture on Facebook referencing Lewis’ new place of employment. The Facebook post stated “we went to see Blair’s new place of employment. Cannot wait for him to start;”
15In his reply affidavit Lewis deposed to the following:
(a) he acknowledged receipt of the letter dated December 11, 2018 and acknowledged a single instance of writing the letters “WTF” on an internal company document, not to be viewed by any customers. The use of some profanity in the car dealership, away from the ears of customers, was entirely common within Blue Star;
(b) he was never suspended by Blue Star;
(c) he has no recollection of having received the letter dated September 9, 2020. Even if the letter was delivered, he was never suspended as had been threatened in December, 2018;
(d) Blue Star never alleged that he engaged in “similar conduct” following the September 9, 2020 letter and there was no reference to similar conduct in the termination letter, or in the termination meeting;
(e) in the termination meeting he respectfully asked for the reasons that he was being terminated and was told that Blue Star was restructuring and was given general platitudes;
(f) with respect to sales targets, he was very successful in the sales component of his position and was remunerated accordingly;
(g) there were some instances where sales targets were not met, however there were never any serious concerns brought to his attention about sales targets;
(h) he was never provided any written discipline or warning concerning his sales targets;
(i) he recalls that in September, 2020 he and Coulliard had a discussion about challenges with sales and they agreed that the dealership was experiencing a higher than normal level of customers purchasing vehicles who did not have any interest in any of the products offered through the Finance and Insurance office, making it difficult to sell F and I products to them;
(j) he has never been aware of a customer complaining about his attitude or his demeanour;
(k) he disclosed that he was able to find new work and when he would be starting in his new employment in his affidavit in support of the motion. At the time he swore the affidavit he did not know what his remuneration would be, however, in his first two months of employment he earned $10,859.58 ($7690.78 after taxes);
(l) following his termination from his employment with Blue Star he made every reasonable effort to find comparable work, regularly searching the Internet for comparable positions. The search criteria were within 50 km of Paris, Ontario, that the posting was less than 30 days old and his expectation that he would earn a comparable salary, particularly if his commute was going to increase;
(m) any posted job he did not apply for was because the commute was too far, the salary was too low, or he was not qualified for the position. He set forth detailed responses for the reasons for not applying to jobs which Blue Star alleged he should have applied to.
Issues
16The following are the issues for determination on the motion for summary judgment:
(a) are there genuine issues requiring a trial with respect to Blue Star’s defence that it had cause for Lewis’ termination?
(b) if there is no genuine issue for trial respecting cause, what is the appropriate period of reasonable notice of termination of Lewis by Blue Star?
(c) what is the measure of Lewis’ damages, including pay in lieu of reasonable notice taking into account working notice given and payment made by Blue Star, the value of benefits during the notice period and moral damages, if applicable, less mitigation income during the reasonable notice period?
(d) are there genuine issues requiring a trial with respect to Blue Star’s claim that Lewis failed to act reasonably to mitigate his damages?
(e) if there are there are genuine issues requiring a trial and the record on the motion is insufficient to permit their determination, can those issues be decided using the fact-finding tools available under rule 20.04(2.1) and (2.2)?
(f) given that the action is brought under the Simplified Procedure, which precludes cross-examination of deponents and witnesses on the motion, and limits examination for discovery, is summary judgment a more expeditious, less expensive, and appropriate means of achieving a just result than a summary trial?
Preliminary Issue re Admissibility of Letter from Blue Star
17Blue Star has raised a preliminary issue respecting the admissibility of the letter from Kowtaluk dated November 19, 2020 to Lewis’ counsel Mr. Touesnard marked “Confidential and Without Prejudice” which was appended as an exhibit to Lewis’ affidavit, arguing that it is subject to privilege. The letter was written in response to Mr. Touesnard’s demand letter seeking additional compensation for Lewis and which included an offer to settle.
18Kowtaluk’s letter set forth the compensation paid to Lewis in lieu of notice, explained the nature of Lewis’ employment with Blue Star, offered reasons why Lewis should have been able to readily find new employment, and explained that, although Lewis was “officially” terminated without cause, Blue Star had substantial evidentiary support of unsatisfactory performance on his part. The letter stated that Blue Star was unable to provide a formal letter of recommendation, was not willing to add funds to the termination pay amount already paid to Lewis, and was not interested in entertaining the offer set forth in Mr. Touesnard’s correspondence.
19Blue Star, in its Factum, did not address the legal principles governing the admissibility of correspondence over which a claim of privilege is advanced. However, in my view, it is not necessary for me to make a ruling with respect to the admissibility of Kowtaluk’s letter as it lacks materiality to the issues requiring determination on the motion in any event.
20In Paciocco and Stuesser, The Law of Evidence, (rev. 5gh ed.) it is stated at p. 27:
Regardless of the kind of proceeding, courts or tribunals resolving issues of fact are being asked to settle particular controversies. They are not interested in information about matters other than those that need to be settled. Evidence that is not directed at a matter in issue is inadmissible because it is “immaterial.” By contrast, “[evidence] is material if it is directed at a matter in issue in the case.” (quoting R. v. B.(L.) (1997), 1997 CanLII 3187 (ON CA), 9 C.R. (5th) 38 at 48 (Ont. C.A.))
21Kowtaluk’s letter which simply stated his position in response to Mr. Touesnard’s correspondence advancing a claim for additional compensation and making an offer to settle does not assist in the resolution of the issues on the motion as enumerated above. Accordingly, I will not have regard to the letter in making any factual determinations on the motion.
Cause for Summary Dismissal
22There is no controversy between the parties respecting the legal principles which govern the duty on employers to give reasonable notice of termination of an employee’s employment of indefinite duration in the absence of just cause for summary dismissal, and the onus on employers to show just cause.
23The law was usefully summarized by Wein, J. in the case of Plester v. Polyone Canada Inc., 2011 ONSC 6068 (S.C.J.) at paras. 31-35, aff’d 2013 ONCA 47 (C.A.) as follows:
"Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."
Reference re Public Service Employee Relations Act (Alberta), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313 (S.C.C.), at 368 cited in Leitner v. Wyeth Canada, [2010] O.J. No. 351 (Ont. S.C.J.) at para. 5.
The law of employment in Canada requires employers to provide adequate notice before dismissing an employee. Where the employer wishes to dismiss an employee summarily, on the basis of misconduct, the onus is on the employer to show just cause.
The McKinley test requires a three-step analysis. The court must first determine the nature and extent of the misconduct. Secondly the court must consider the surrounding circumstances for both employer and employee. Finally the court must determine whether dismissal is warranted as a proportional response: is the misconduct sufficiently serious that it gives rise to a breakdown in the employment relationship. Leitner v. Wyeth Canada, [2010] O.J. No. 351 (Ont. S.C.J.) Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 2004 CanLII 43692 (ON CA), 192 O.A.C. 126 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 25 (S.C.C.).
Dismissal for just cause has been referred to as the "capital punishment" of employment law. In determining whether misconduct on the part of an employee should lead to dismissal, the Supreme Court of Canada has set out an analytical framework involving a contextual approach, to be followed in deciding whether an employer had just cause to dismiss an employee. The trial court must consider not simply whether the employee was guilty of misconduct that gave rise to the dismissal, but also whether the nature and degree of the misconduct warranted summary dismissal. McKinley v. BC Tel, 2001 SCC 38, [2001] 2 S.C.R. 161 (S.C.C.), Bennett v. Cunningham, [2011] O.J. No. 185 (Ont. Div. Ct.) aff'd 2006 CanLII 37516 (ON SC), [2006] O.J. No. 4446 (Ont. S.C.J.)
Inherent in the contextual approach is the principle of proportionality: alternatives to summary dismissal without notice must be considered by the employer before terminating an employee for just cause.
24In its Statement of Defence Blue Star alleged the following bases of cause for Lewis’ summary dismissal:
(a) he was unable and/or refused to perform his job duties;
(b) he was harassing and abusive to employees and staff;
(c) he was insubordinate and wilfully disobedient;
(d) he neglected his employment duties;
(e) he exhibited uncooperative and unprofessional behaviour;
(f) he engaged in written profanity on company documents;
(g) he exhibited bullying behaviour, negative demeanour, abrasiveness, and unwillingness to work as a team.
25The only evidence led by Blue Star in support of its claims of cause for dismissal was set forth in the affidavit of Coulliard. The allegations by Coulliard of insubordination, failure to meet sales targets of $2000 per deal, and harassing and bullying behaviour towards other staff members, were general, conclusory, and lacked specificity. The single instance of Lewis’ use of profanity on company documents alleged by Coulliard was that he wrote on a turn-over report to document a deal “no f…ing chance” without any further particulars of when this occurred or the context. It appears to have occurred sometime prior Coulliard’s warning letter of December 11, 2018, some two years before the dismissal date, with no evidence of any reoccurrence of this conduct.
26As indicated above, it is presumed that the evidence led by Blue Star respecting alleged cause for dismissal in response to the motion will be its evidence at trial. The lack of particularity in Blue Star’s evidence makes it difficult to apply the McKinley test of determining the nature and extent of the alleged misconduct, the surrounding circumstances for both employer and employee, and whether dismissal was warranted as a proportional response.
27Moreover, there is no evidence that the misconduct upon which Blue Star relies was sufficiently serious that it gave rise to a breakdown in the employment relationship. Indeed, the evidence indicates that Blue Star did not consider the alleged misconduct to represent such a breakdown, as demonstrated by its two warning letters by which it purported to implement a program of progressive discipline. The September 9, 2020 letter made reference to Lewis’ alleged negative demeanour and abrasiveness towards other employees and stated that a future pattern of similar conduct by Lewis would lead to dismissal from his employment. Blue Star led no evidence that there were any instances of negative demeanour and abrasiveness by Lewis towards other employees, much less a pattern of such conduct, after the letter and prior to the date of his dismissal.
28Moreover, Blue Star led no evidence that it gave any consideration to alternatives to summary dismissal prior to terminating Lewis’ employment except for the progressive discipline measures in its September 9, 2020 letter which it failed to implement. The summary termination must therefore be found to have been a disproportionate response to any allegations of misconduct on Lewis’ part.
29In my view, there are no genuine issues requiring a trial respecting whether Blue Star had just cause to dismiss Lewis from his employment without providing him with reasonable notice of termination or pay in lieu thereof.
30In the absence of proof of just cause for his summary dismissal, Blue Star was obliged to provide Lewis with reasonable notice of termination.
Appropriate Notice Period
31In the case of Lin v. Ontario Teachers’ Pension Plan Board, 2016 ONCA 619 at para 54 the Court of Appeal confirmed that, at its foundation, reasonable notice is the period of time it should reasonably take the terminated employee to find comparable employment.
32It is well-established that in determining the length of notice, the court should consider, among other possible factors, the Bardal factors (derived from Bardal v. Globe & Mail Ltd., [1060] O.W.N. 253 (H.C.J.)) namely,
the character of employment;
the length of service;
the age of the employee; and
the availability of similar employment having regard to the experience, training, and qualifications of the employee.
(see Paquette v. TeraGo Networks Inc., 2015 ONSC 4189 (S.C.J.) rev’d on other grounds 2016 ONCA 618, and the cases therein referred to)
33Perell, J. in Paquette observed at para. 28 that the approach to determining a reasonable notice period is flexible, and each case will turn on its own particular facts, with the weight to be given each factor to vary according to the circumstances of each case. The judge in a wrongful dismissal case is required to exercise judgment in determining what factors are of particular importance and in determining the reasonable notice period, the court should not apply as a starting point any rule of thumb based upon weeks or months of notice per year of service as such an approach unduly emphasizes length of service above all relevant factors. Each case must be considered having regard to its particular facts.
34Lewis submits that, based upon his age, length of service, character of his employment being predominantly sales-based, he was entitled to a reasonable notice period of between 12 and 18 months, referring to the case of Maloney v Canway Paper Products Co. [1984] O.J. No. 1360 (H.C.J.). Lewis suggests that a notice period of 16 months would be reasonable and appropriate.
35The plaintiff in Maloney was a commission salesperson of about 43 years of age when he was discharged by the defendant following eight years of service. At paragraph 20 Cromarty, J. noted that based upon his age, length of service and the fact that similar alternative employment in Eastern Ontario was very scarce, 18 months was a proper period of notice.
36Although Blue Star disputes Lewis’ characterization of his employment as “Financial Services Manager,” submitting that his proper title was “Business Manger (F. & I.)” and that he embellished the nature of his duties and responsibilities in his evidence, I find that there is no real fundamental disagreement with respect to the character of his employment for the purpose of determining an appropriate period of notice. Regardless of the use of the word “manager” in both versions of his title, Lewis had no supervisory responsibilities over other employees and no real managerial role. His employment was sales-related, and his income was commission-based. There is no genuine issue requiring a trial respecting the nature of Lewis’ employment.
37As a commission salesperson for the sale of finance and insurance products in the retail automotive business, Lewis appeared to have transferable skills. The evidence indicated that there were a relatively significant number of postings of similar positions to that of Lewis at Blue Star within a reasonable geographic radius. The availability of similar employment having regard to Lewis’ experience, training, and qualifications is borne out by the relative speed by which he was able to secure similar alternative employment, commencing his new position within approximately 4 months of the date of his termination. It is expected that he likely received an offer of employment from Demeyere Chrysler sometime prior to his start date of March 1, 2021.
38I find that Maloney is distinguishable from the facts of the case at bar, based upon Cromarty J.’s reliance upon the scarcity of alternative employment in the region in that case. That factor is not present in the case at bar.
39In my view, based upon the character of the employment as commission sales, Lewis’ length of service of 10.5 years, his age at 47 and the availability of similar employment having regard to his experience, training, and qualifications, a notice period of 14 months (60.7 weeks) would be considered reasonable and appropriate. Lewis received working notice of one week, leaving a notice shortfall of 59.7 weeks
Damages
40As a commission salesperson, Lewis’ income fluctuated in the three years prior to his termination, but not significantly. His income was $114,709 in 2018, $127,735.91 in 2019 and he stated that he was on pace to earn over $120,000 in 2020 but for his termination. Coulliard agreed, deposing that Lewis’ income in 2020 was $119,965.46. Lewis’ average income over these three years was the sum of $120,803, roughly equivalent to his projected income in the year of termination. In my view $120,803 is an appropriate annual income to utilize for the purpose of calculating Lewis’ damages.
41Before taking into consideration mitigation income, the 59.7 week notice shortfall period resulted in lost income of $2,323.13 per week or $138,691.13. Blue Star paid the sum of $23,886 reducing this amount to $114,805.13.
42Blue Star led no evidence with respect to the value of the benefit package that Lewis participated in by virtue of his employment. In his Factum Lewis submits that the benefits should be valued at 10% of his annual compensation, being $1,006.69 per month. The basis for this estimate was not provided.
43Lewis led no evidence with respect to whether the terms of his employment with Demeyere Chrysler included participation in a benefit package equivalent or similar to that of Blue Star and if so, when his eligibility for such participation commenced. In my view there is a genuine issue requiring a trial with respect to the value of the employee benefits lost by Lewis during the notice period and its duration and hence the quantum of that loss.
44In his Factum Lewis advanced a claim for moral damages in connection with an alleged breach of Blue Star’s obligation of good faith and fair dealing in the manner of his dismissal. He states that the post-termination conduct of Blue Star has been “deplorable,” pointing to it having made allegations of just cause that stood no chance of success.
45Lewis cites the case of Ruston v Keddco MFG.(2011) Ltd. , 2019 ONCA 125 (C.A.) for the proposition at para. 13 that employers have an obligation of good faith and fair dealing in the manner of dismissal and also that an employer’s pre-and post termination conduct may be relevant in the moral damage analysis if such conduct is a component of the manner of dismissal.
46In Ruston the court noted at para. 14 that the employer’s conduct in threatening the employee not to make a claim and in instituting a counterclaim was calculated to, and did, cause the employee stress. The manner of dismissal was found to be devastating to the employee in that case.
47In my view, the evidence in the case at bar is not comparable to the facts in Ruston and does not support a claim for aggravated/moral damages. There is no evidence that the manner of dismissal caused Lewis stress. Indeed, Blue Star communicated to Lewis in its termination letter and in the meeting that his dismissal was without cause and it provided him with one week’s working notice and an additional payment of $23,886 without requiring a release in return. It did nothing to threaten Lewis. The mere fact that Blue Star defended the action alleging cause, without more, does not attract an award of aggravated/moral damages.
48Moreover, Lewis’ claim in the Statement of Claim was restricted to damages of lost wages and bonus and the lost value of his benefits for a period of 16 months. He advanced no claim for aggravated/moral damages in the Statement of Claim.
Mitigation
49It is well accepted that in a wrongful dismissal action the onus of proving that the plaintiff employee failed to take reasonable steps to mitigate her/his damages rests on the defendant employer.
50Blue Star correctly points out that the application of the Simplified Procedure which limits examination for discovery and disentitles it from cross-examining Lewis on his affidavits on the motion for summary judgment severely affects its ability to discharge its onus of proving a lack of reasonable steps on Lewis’ part to mitigate his damages. This is compounded by the fact that the evidence with respect to Lewis’ efforts to mitigate is solely within his knowledge and not within Blue Star’s.
51Blue Star points to the Facebook post by Lewis’ spouse on or about January 31, 2021 referencing Lewis’ “new place of employment,” suggesting that Lewis appears to have mitigated his damages in whole or in part by that date. However, he mentions nothing about that in his affidavits and Blue Star has been denied the opportunity to cross-examine him on this issue.
52Blue Star also points out that it has been denied an opportunity to fully explore by cross examination Lewis’ mitigation efforts, including obtaining copies of his resumes, emails, correspondence and other documents to substantiate his efforts in that respect. Lewis has also not lead evidence with respect to his earnings from his new employer during the notice period to date.
53The dilemma experienced by a responding party to a motion for summary judgment in a Simplified Procedure action was addressed by the Court of Appeal in Singh v. Concept Plastics Limited, 2016 ONCA 815.
54The Court noted at para. 23 (citing Combined Air Mechanical Services Inc. v Flesch, 2011 ONCA 764 at para. 256) that although summary judgment is available in the context of actions brought under the Simplified Procedure, given that rule 76 limits discoveries and prohibits cross-examination on affidavits and examinations of witnesses on motions, the test for granting summary judgment will generally not be met where there is significant conflicting evidence on issues confronting the motion judge.
55The court in Concept Plastics noted at para. 24 that the motion judge’s reasons neither referred to the issue nor explained why the constraints imposed by the rule did not prejudice the defendant in its ability to respond to the motions and found that this was an error.
56In Cornacchia v. Rubinoff, 2018 ONSC 2732 (S.C.J.) Copeland J. considered Concept Plastics and commented as follows at para. 40:
Concept Plastics does not hold that summary judgment will never be available on a simplified procedure matter due to the unavailability of cross-examination on the affidavits filed for the motion. Rather, in Concept Plastics the Court of Appeal signaled the need for caution in considering summary judgment motions in simplified procedure matters, due to the unavailability of cross-examination. Where a motions judge is considering a summary judgment motion in a simplified procedure matter, the judge should consider if there is unfairness as a result of the unavailability of cross-examination. If the motions judge grants the motion, the judge should explain why and how the potential unfairness due to the unavailability of cross-examination is addressed by the materials filed on the motion: see Concept Plastics at paragraphs 24-25.
57In my view, the potential unfairness the Blue Star due to the unavailability of cross-examination with respect to the issue of mitigation has not been addressed by the materials filed on the motion. Blue Star has been denied the opportunity to fairly discharge its onus of showing that Lewis did not act reasonably in mitigating his damages.
Effect of the Simplified Procedure on the fairness of the summary judgment process
58In my view, although the constraints imposed by the Simplified Procedure do prejudice Blue Star’s in its ability to respond to the motion on the issue of mitigation, it is not the case on the issues of whether Blue Star had cause to summarily terminate Lewis’s employment, the calculation of the reasonable notice period, and the determination of Lewis’ lost commission income for the notice period.
59In contrast to the issue of mitigation, in respect of which Blue Star bears the onus but the evidence is within the knowledge of Lewis, the evidence in support of Blue Star’s claim of cause for termination is entirely within its knowledge and control. It is obliged to put its “best foot forward” in leading that evidence. For the reasons set forth above, even if Blue Star’s evidence respecting cause were accepted in its entirety, its obligation of proving cause for Lewis’ summary dismissal would not be discharged. There is therefore no unfairness presented by the Simplified Procedure on the issue of cause.
60Similarly, with respect to the issues of the notice period and the lost income calculation, there is no unfairness to Blue Star occasioned by the Simplified Procedure. The notice period is to be determined by the court in its judgment based upon the Bardal and other relevant factors. The facts bearing on the application of the relevant factors are not in serious dispute. There is similarly no dispute with respect to Lewis’ income in 2018, 2019 and 2020 upon which the court relies in calculating his lost income during the notice period.
61In my view, it would not be expeditious, less expensive, nor an appropriate means of achieving a just result to dismiss the motion for summary judgment in its entirety and remit the entire action to a full trial simply by reason of the unfairness presented by the Simplified Procedure on the mitigation issue alone. The court will be able to arrive at a just determination of the issue of mitigation by utilizing the enhanced powers in subrule 20.04(2.1) (weighing the evidence, evaluating the credibility of a deponent, and drawing any reasonable inference from the evidence).
62Subrule 20.04(2.2) provides that a judge, for the purpose of exercising any of the powers set out in subrule (2.1) may order that oral evidence be presented by one or more parties, with or without time limits on the presentation (a “mini-trial”).
Next Steps
63In my view it is appropriate that a minitrial be held to address the following issues:
whether Lewis failed to take reasonable steps to mitigate his damages by seeking alternate employment;
calculation of Lewis’ mitigation income to be credited against his damage claim for lost income during the notice period;
determination of the value of the employee benefit package in which Lewis was a participant prior to his termination by Blue Star, and the calculation of the loss of such value by Lewis during the notice period, taking into account his participation in any benefit plan offered by his new employer.
64The following directions are given with respect to the conduct of the minitrial:
(a) the parties shall serve and file supplementary affidavits of documents, if necessary, to disclose all documents within their possession or control respecting the issues to be determined on the minitrial within 30 days hereof;
(b) the parties are at liberty to serve and file supplementary affidavits to address the issues on the minitrial. The plaintiff shall deliver all of his supplementary affidavits within 45 days hereof and the defendant shall deliver all of its supplementary affidavits within 20 days thereafter;
(c) the minitrial shall be scheduled before me by the Trial Coordinator upon written request of either party following completion of the exchange of the affidavit material as aforesaid. The requirement for a pre-trial conference is waived, without prejudice to the parties requesting a pre-trial, on consent, through the Trial Coordinator;
(d) each affiant shall be subject to cross-examination and may be re-examined, such re-examination to be for not more than 10 minutes;
(e) a party shall complete all of the party’s cross-examination within 50 minutes; and
(f) either party may move for further directions, if necessary, in order to provide for the most expeditious, least expensive and just determination of the issues on the minitrial on their merits.
65I am seized of the minitrial, without prejudice to either party moving, on notice, or on consent, for an order that the minitrial be presided over by another judge in order to address scheduling difficulties resulting from my being seized of the matter.
66The issue of costs is deferred until the conclusion of the minitrial, at which time further directions will be given with respect to the delivery of written submissions on costs.
D.A. Broad, J.
Date: November 9, 2021