Pham v. Qualified Metal Fabricators Ltd., 2022 ONSC 1552

COURT FILE NO. CV-21-00655504-0000

DATE: 20220427

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BINH VIET PHAM

Plaintiff

– and –

QUALIFIED METAL FABRICATORS LTD.

Defendant

Lluc Cerda, lawyer for the Plaintiff

Christine Ashton and Shaliney Malhotra, lawyers for the Defendant,

HEARD: MARCH 2, 2022

REASONS FOR DECISION

G. DOW, J.

1Both parties sought summary judgment. The plaintiff sought summary judgment as a result of his alleged wrongful dismissal effective March 20, 2020. The defendant sought dismissal of the action on the basis the plaintiff acquiesced to his layoff, or alternatively, failed to mitigate his damages by not seeking new employment. This included a recall to work to begin in or about February 2 or 8, 2021.

2In reviewing the material, it became apparent there was a potential issue of whether the plaintiff was precluded from claiming statutory damages given the passage of Section 7 of Ontario Regulation 228/20 pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (the “ESA”) known as the Infectious Diseases Emergency Leave (“IDEL”). This regulation, in the COVID pandemic, provided for reduction or elimination of hours of work without it constituting constructive dismissal. There were three decisions known to the parties, one of which concluded an employee is precluded from claiming damages at common law that they had been constructively dismissed as a result of the IDEL regulation. That decision, Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135 was to be heard in the Court of Appeal on April 1, 2022. Despite my raising whether the parties wished to await that decision, they chose to proceed and rely on these decisions as they existed.

Background

3The plaintiff began his employment with the defendant as a welder on October 16, 2000. As of his layoff date of March 23, 2020, (or 19 years and five months later) he was being paid $56,000.00 per year, was included in the defendant’s group benefit plan and entitled to three weeks paid vacation. The plaintiff was 51 years of age at the time of layoff.

4The defendant had laid off 41 of its approximately 140 of employees in 2009. The plaintiff was not one of them. The plaintiff was one of 18 welders, and third in seniority with the defendant. The plaintiff was one of 11 welders laid off in March, 2020 as the defendant’s business largely relied on aerospace and food services for its revenue.

5The plaintiff denied receipt or signing a letter dated March 20, 2020 which the defendant’s supervisor says was part of that supervisor personally telling the plaintiff of the layoff to begin effective March 23, 2020. Regardless, the plaintiff acknowledged receipt of the letter in the mail shortly after his layoff. Importantly (for my purposes) the plaintiff testified upon receipt of the letter, “I touch base with my lawyer right away and everything regarding this letter”, (page 23, question 80 of the cross-examination of the plaintiff held on June 8, 2021).

6The plaintiff’s layoff was initially to be until June 19, 2020 but was extended by subsequent letters dated June 2, September 23 and December 9, 2020. The December 9, 2020 letter extended the layoff for a further nine months or to September 4, 2021.

7The September 23, 2020 letter advised the plaintiff’s layoff was under the Infectious Diseases Emergency Leave Regulation passed by the Ontario government. The plaintiff did apply for and received the Canada Emergency Response Benefit.

8On December 22, 2020, the plaintiff’s counsel authored and delivered to the defendant a letter of retainer and intention to advance a wrongful dismissal claim. The Statement of Claim was issued January 25, 2021 and served shortly after, or very likely before the defendant recalled the plaintiff to work on either February 1 or 4, 2021. The plaintiff had begun looking for work upon issuance of the Statement of Claim and found a position starting February 8, 2021 for a higher salary than he had been earning with the defendant. He was laid off from this new position for six weeks between April 15 to May 31, 2021.

9It should also be noted that the plaintiff discovered and tendered evidence the defendant was advertising for welding positions at a lower wage as of January 25, 2021. The defendant admits having hired welders as well as recalling other welders laid off before the plaintiff but some were being paid more as well as less than the plaintiff. The variation in wages apparently had to do with the qualifications of the welder to deal with non-aluminum metals (known as MIG or TIG welding).

Analysis

10The central issue is whether the plaintiff acquiesced to his layoff or, according to the law, condoned it. The law on constructive dismissal was recently summarized by the Court of Appeal in McGuinty v. 1845035 Ontario Inc., 2020 ONCA 816. The employee must establish “(i) the employer’s breach of an essential term of the employment contract or (ii) a course of conduct by the employer that establishes that it no longer intends to be bound by the employment contract” (at paragraph 21).

11Further, it is a defence to a finding of a constructive dismissal for the employer to show the employee condoned the action of the employer such that the employee cannot claim to have been constructively dismissed (McGuinty v. 1845035 Ontario Inc., supra (at paragraph 24).

12The employee must make the decision within “a reasonable period of time”. As stated in McGuinty v. 1845035 Ontario Inc., supra, “whether an employee acts within a reasonable period of time is a fact-specific determination that must be made by the trial judge based on consideration of a number of factors” (at paragraph 25).

13Counsel for the plaintiff relied on this decision in support of its position the plaintiff exercised his choice within a reasonable period of time. In McGuinty v. 1845035 Ontario Inc., supra, the employee provided a doctor’s note that he was off work for medical reasons and did not exercise this choice within a reasonable period of time being 23 months later by issuing the Statement of Claim.

14That is not the situation before me. There was no medical reason for this plaintiff to be off work. It is clear the plaintiff was laid-off effective March 23, 2020. It is a clear a lay-off had occurred previously at the defendant’s business while the plaintiff was employed there. It is clear the plaintiff sought legal advice “right away” after being laid off. It is clear the defendant extended the lay-off on June 2 and September 23 in writing without any action by the plaintiff.

15The plaintiff did not dispute the lay-off for almost nine months before alleging constructive dismissal. While the plaintiff was not one of the employee’s previously laid off in 2009, I find the plaintiff was aware the possibility of lay-off at his place of employment. I find his decision to wait nine months and after the second extension of the layoff to allege constructive dismissal to be beyond a reasonable time in such circumstances.

16As a result, the plaintiff’s motion for summary judgment is dismissed. The defendant’s motion for dismissal of the action is granted. Given this result, it is unnecessary to rule on the issue of whether the IDEL regulation was applicable.

17Regarding the issue of notice, this requires an evaluation of the character of the plaintiff’s employment, the length of service, the age of the employee, and the availability of similar employment in regard to the experience, training and qualifications of the employee.

18In this regard, it was not disputed the plaintiff’s employment began October 16, 2000 and thus his length of service at the time of lay-off was 19 years and 5 months. Similarly, it was agreed the plaintiff’s age was 51 at the time of the layoff. The length of service is considerable. His age places him closer to retirement age than to commencement of his career.

19There was no evidence regarding the availability of similar employment as of March, 2020. There was evidence the plaintiff quickly found work when he began looking for same. To that end, the plaintiff demonstrated considerable experience, training and qualifications to another employer.

20The plaintiff sought 18 months’ notice and relied on decisions where 18-21 months were awarded. The plaintiff submitted 12 to 16 months was the appropriate notice period. Neither party identified a welder having been terminated. In my view, and in the event my conclusion above was incorrect, I find the appropriate notice period at common-law to be 17 months.

Costs

21The plaintiff submitted a Bill of Costs docketing 60.8 hours by counsel with carriage of the matter and an additional 15.4 hours of the assistance from summer and/or articling students. At partial indemnity rates, this totaled $14,740.80. With HST plus disbursements, the total was $19,329.31.

22The defendant’s costs outlined docketed 115.8 hours by counsel with carriage and a further 118.8 hours for junior counsel. At partial indemnity rates, the amount claimed was $48,932.10. With HST and disbursements of $2,736.45, the total claim was $58,029.72.

23Clearly, a disparate amount of time was docketed by counsel defending the matter. In my view. the amount of time docketed was excessive in the circumstances. However, the result favoured the defendant.

24Mindful of the Court of Appeal direction in Boucher et al v Public Accountants Council for the Province of Ontario et al, 2004 14579 (ON CA), [2004] O.J. No. 2634 “the cost award should reflect more what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties rather than any exact measure of the actual costs of the successful litigation” (at paragraph 24). I find and fix costs in the amount $14.740.80 for partial indemnity fees, plus HST $1.916.30 and the defendant’s disbursements of $2.736.45 (inclusive of HST) for a total of $19,393.55 payable by the plaintiff to the defendant forthwith.