COURT FILE NO.: CV-20-00640250-0000
DATE: 20220517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SONIA GRACIAS
Plaintiff
- and –
DR. DAVID WALT DENTISTRY PROFESSIONAL CORPORATION
Defendant
Andrew Monkhouse, Simon Pelsmakher and Daniel Hunter for the Plaintiff
Paul J. Martin for the Defendant
HEARD: April 28, 2022
PERELL, J.
REASONS FOR DECISION
Contents
A. Introduction and Overview.. 2
B. Procedural and Evidentiary Background. 3
C. The Collateral Evidence Rule and the Mitigation Fraud Issue. 4
D. The Alleged Mitigation Fraud. 6
E. Facts. 9
Employment History. 9
The Dismissal 12
The Aftermath of the Dismissal 13
F. Is the Case Appropriate for a Summary Judgment?. 13
G. Legislative Background. 14
H. Analysis and Discussion. 15
Issues. 15
The Employment Contract and the Entitlement to Common Law Damages for Dismissal without Cause 16
I. Common Law Damages for Dismissal without Cause. 18
General Principles. 18
The Significance of Previous Part-time Employment 20
The Significance of the Covid-19 Pandemic. 20
Is the CERB Deductible from the Damages for Dismissal without Cause?. 21
The Significance of a Reference Letter 21
Application of the Principles of Damages for Wrongful Dismissal to the Immediate Case. 22
J. Conclusion. 22
A. Introduction and Overview
[1] This is a summary judgment motion in an action governed by the simplified procedure of Rule 76 of the Rules of Civil Procedure.[^1]
[2] The Plaintiff, Sonia Gracias, was dismissed without cause from her five-month, twenty-one-day full-time employment as a dental hygienist for the Defendant, Dr. David Walt Dentistry Professional Corporation (“Walt Dentistry”). On her dismissal, Ms. Gracias was paid her entitlements under the Employment Standards Act, 2000[^2] of one-week’s pay in lieu of notice. After her dismissal, she sued Walt Dentistry for: (a) $50,000 in damages for discrimination for contraventions of the Ontario Human Rights Code,[^3] (b) $50,000 for common law damages for a wrongful dismissal; and (c) $50,000 in punitive damages. With respect to her discrimination claim, Ms. Gracias alleged that Dr. Walt dismissed her because her chemotherapy treatments and her childcare responsibilities would reduce her availability for work. Ms. Gracias, however, has now abandoned her human rights damages claim. She also abandons her claims for punitive damages, employment benefits, and a bonus. Ms. Gracias brings a summary judgment motion and claims $43,750 ($6,250/month) as compensation for a wrongful dismissal claim based on a notice period of seven months. Ms. Gracias submitted that she is entitled to common law damages in lieu of notice because the restrictions in her employment contract are unenforceable. She submits that the restrictive provisions in her employment contract are unenforceable because her employment contract unlawfully contracted out of the Employment Standards Act, 2000.
[3] In its original Statement of Defence, Walt Dentistry denied the human rights discrimination claim and it pleaded that it could have fired Ms. Gracias for cause for egregious employee misconduct. In its Amended Statement of Defence to Ms. Gracias’ diminished claim that abandons discrimination and punitive damages, Walt Dentistry abandons its allegations of employee misconduct but submits that Ms. Gracias’ action should be dismissed because by the terms of her written employment contract, she is barred from claiming more than her Employment Standards Act, 2000 entitlements. In the alternative, Walt Dentistry submits that, at its highest, the notice period for Ms. Gracias’ wrongful dismissal claim is one month; however, it submits that there are no compensatory damages because Ms. Gracias received CERB (Canada Emergency Response Benefit) of $16,000 during the Covid-19 pandemic. For either alternative and in any event, Walt Dentistry submits that if Ms. Gracias’ claim is not barred by her employment contract or reduced to nothing, then her claim should be dismissed because she failed to mitigate.
[4] Releasing the dogs of litigation war and going for the jugular, Walt Dentistry submits that Ms. Gracias falsified her evidence of mitigation with fabricated records of her Internet job applications.
[5] Both parties wish to have their dispute decided by this summary judgment motion. I am satisfied that this simplified procedure case is appropriate for a summary judgment, and for the reasons that follow, I award, Ms. Gracias a three-month notice period less Employment Standards Act, 2000 entitlements, i.e., $17,242.26 ($18,750 - $1,507.74), with prejudgment interest of $344.85, for a judgment of $17,587.11. The CERB (Canada Emergency Response Benefit) is not a mitigation credit.
B. Procedural and Evidentiary Background
[6] On March 15, 2020, Ms. Gracias’ employment is terminated immediately without cause and without notice.
[7] On April 29, 2020, Ms. Gracias commences this action by Statement of Claim.
[8] On October 14, 2020, Walt Dentistry delivers its Statement of Defence.
[9] On May 6, 2021, examinations for discovery are completed. Ms. Gracias subsequently delivers a 304-page .pdf document brief providing evidence of her job search. That the exhibits are in .pdf format shall be pertinent to Walt Dentistry’s mitigation fraud allegation.
[10] On July 13, 2021, Justice Ramsay schedules Ms. Gracias’ summary judgment motion for January 31, 2022.
[11] On January 26, 2022, Justice Stinson amends the timetable for the summary judgment motion, and he grants leave for Walt Dentistry to examine Ms. Gracias at the hearing on the issue of mitigation only. This is the launch of Walt Dentistry’s attack on the truth of Ms. Gracias’ evidence about mitigation. The summary judgment motion is rescheduled for April 28, 2022.
[12] On February 25, 2022, Ms. Gracias delivered an Amended Statement of Claim pursuant to the simplified procedure of Rule 76 of the Rules of Civil Procedure.
[13] On March 4, 2022, Ms. Gracias delivers her Notice of Motion for a summary judgment with respect to only her wrongful dismissal claim. Ms. Gracias’ motion is supported by her affidavit dated March 4, 2022.
[14] In her motion record, Ms. Gracias includes Exhibits L (court endorsement), M (court endorsement), N, O and P (without prejudice correspondence), and Q (affidavit of service). These exhibits, however, are not referred to and identified in her affidavit. Of these exhibits, Exhibits N, O, and P, are copies of letters from Ms. Gracias’ lawyers that contained without prejudice offers to settle. After Walt Dentistry objected to these letters being admitted as evidence, these exhibits were withdrawn from the motion record.
[15] On March 18, 2022, Walt Dentistry delivers its Responding Motion Record for the summary judgment motion. Walt Dentistry resists the motion for summary judgment with the following affidavit evidence:
a. Affidavit of Tyler Hatch dated March 14, 2022. Mr. Hatch is the principal of DFI Forensics, a digital forensics firm based in Langley, British Columbia. Mr. Hatch practised as a litigation lawyer, became a certified digital forensics examiner, and then he founded his firm. Walt Dentistry retained Mr. Hatch’s firm to evaluate the truth of the documents that chronicled Ms. Gracias’ job search after her dismissal from employment.
b. Affidavit of Dr. Brian Laski dated March 17, 2022. Dr. Laski is the principal of a dental clinic. Dr. Walt communicated with Dr. Laski to investigate Ms. Gracias’ mitigation evidence, and Dr. Laski agreed to provide an affidavit.
c. Affidavit of Dr. John Nikolovski dated March 18, 2022. Dr. Nikolovski is the principal of a dental clinic. Dr. Walt communicated with Dr. Nikolovski to investigate Ms. Gracias’ mitigation evidence, and Dr. Nikolovski agreed to provide an affidavit.
d. Affidavit of Dr. David Walt dated March 18, 2022. Dr. Walt is the principal of the defendant.
e. Affidavit of Dr. Lennard Weiss dated March 16, 2022. Dr. Weiss is the principal of a dental clinic. Dr. Walt communicated with Dr. Weiss to investigate Ms. Gracias’ mitigation evidence, and Dr. Weiss agreed to provide an affidavit.
[16] On April 6, 2022, Walt Dentistry delivers a Request to Admit.
[17] On April 12, 2022, Walt Dentistry delivers an Amended Statement of Defence.
[18] On April 14, 2022, Ms. Gracias delivers her Factum.
[19] On April 22, 2022, Walt Dentistry delivers its Responding Factum.
[20] On April 25, 2022, Ms. Gracias delivers a Response to the Request to Admit.
[21] On April 26, 2022, Ms. Gracias delivers a Reply Factum.
[22] For the summary judgment motion, there was no cross-examinations of the affiants.
[23] On April 27, 2022, Ms. Gracias delivers an affidavit of that date and there is a virtual court hearing of her summary judgment motion on April 28, 2022. At the commencement of the hearing, Ms. Gracias is examined viva voce for approximately forty-five minutes. Judgment is reserved.
C. The Collateral Evidence Rule and the Mitigation Fraud Issue
[24] As mentioned above, Walt Dentistry alleges that Ms. Gracias falsified the evidence of her attempts at mitigation after her dismissal from employment. In the next section of these Reasons for Decision, I shall explain why Walt Dentistry’s wrathful attack fails on its merits. In this section of my reasons, I shall briefly explain why Ms. Gracias’ defence to the attack must be on the merits and not based on the collateral fact rule, which she attempted to do.
[25] As noted above, in 2021, in the second year of her wrongful dismissal action, Ms. Gracias delivered a 304-page brief containing answers to her undertakings. The brief contained her evidence of her efforts to find a new job after her dismissal from employment on March 15, 2020.
[26] In preparing for the summary judgment motion, Dr. Walt reviewed Ms. Gracias’ document brief about mitigation. Because he was skeptical about why someone as qualified as Ms. Gracias would allegedly have difficulty finding a new job, he examined the .pdf documents, and he noticed some discrepancies in the documents. He believed that Ms. Gracias had fabricated evidence. Walt Dentistry retained Mr. Hatch, an expert forensic examiner, to determine whether there was some substance to Dr. Walt’s suspicions. Dr. Walt made investigations of his own to validate or refute the evidence proffered by Ms. Gracias. Dr. Walt contacted Drs. Laski, Nikolovski, and Weiss, and they respectively were prepared to and did swear affidavits for the summary judgment motion. Those affidavits cast doubt on whether Ms. Gracias applied for jobs with the affiants’ dental clinics. With the dentists’ affidavits and Mr. Hatch’s report casting doubt on the veracity of Ms. Gracias’ evidence of mitigation, in March 2022, one month before the summary judgment motion in an action that had diminished to a less than $50,000 claim, Walt Dentistry sets out to prove that Ms. Gracias had falsified her evidence of mitigation.
[27] From a litigation perspective, Ms. Gracias’ response to this assault was pathetic. She did not cross-examine Mr. Hatch. She did not retain an expert of her own. She did not swear an affidavit to contradict or explain away the discrepancies. She simply took the position that Walt Dentistry’s assault offended the collateral fact rule and that the evidence was inadmissible and an unfair and vindictive attack on her credibility.
[28] As I shall explain later in these Reasons for Decision, I believe Ms. Gracias’ evidence that she did not falsify documents. Some misadventure did occur with the documents, but there was no fabrication. As I will explain, Ms. Gracias’ mitigation efforts will survive the furious storm of damning allegation because Walt Dentistry’s evidence is not persuasive. Walt Dentistry’s evidence is too flawed and incomplete to draw the inference that Ms. Gracias falsified evidence and attempted to defraud the court. I shall not draw inferences that are speculative, implausible, and inconsistent with other more persuasive evidence that Ms. Gracias did a genuine job search. I find as a fact that Walt Dentistry failed to prove the enormously serious allegation that Ms. Gracias falsified evidence.
[29] In this section of my reasons, I shall briefly explain why Ms. Gracias, however, cannot take shelter from the storm under the collateral fact rule.
[30] Evidence to impeach a witness by contradicting what he or she said during cross-examination about an immaterial matter is inadmissible.[^4] If on cross-examination a witness is asked questions by opposing counsel solely with a view to attacking the credibility of the witness, the witness’ answers are conclusive and cannot be contradicted by the calling of independent evidence to show that the answers might be untrue.[^5]
[31] In the immediate case, Ms. Gracias gave evidence with respect to her efforts to mitigate. Mitigation is not a collateral issue; it is a fundamental issue in a wrongful dismissal case and a fundamental issue in virtually every case where a damages claim is made because the law does not compensate a plaintiff for avoidable loss. Walt Dentistry proffered the evidence of Mr. Hatch and of Drs. Laski, Nikolovski, Walt, and Weiss to contradict Ms. Gracias’ evidence about a fundamentally material issue. Walt Dentistry’s evidence, if it had proved that she had fabricated documents, would obviously also have impeached Ms. Gracias and shown her to be a liar, but Walt Dentistry’s evidence was obviously not introduced solely to impeach Ms. Gracias. Ms. Gracias’ counsel was wrong in submitting that the court should disallow the evidence or treat it as irrelevant because of the collateral fact rule.
[32] The evidence of Mr. Hatch and of Drs. Laski, Nikolovski, Walt, and Weiss to contradict Ms. Gracias’ testimony was admissible. I shall address the merits of it in the next section of these Reasons for Decision.
D. The Alleged Mitigation Fraud
[33] But for the allegation that Ms. Gracias falsified evidence, her wrongful dismissal action would be a commonplace wrongful dismissal action. In this part of my Reasons for Decision, I shall address the merits of this serious allegation of a mitigation fraud and make my findings of fact. As already alluded to, I conclude that it has not been proven that Ms. Gracias fabricated evidence or that she failed to mitigate for employment income following her dismissal from employment. Later in these Reasons for Decision, I shall make my factual and legal findings for Ms. Gracias’ wrongful dismissal claim.
[34] The first step in the analysis is to put the alleged mitigation fraud into the context of Ms. Gracias’ whole action and her prosecution of that action. In this regard it shall be important to keep in mind the following benchmark facts and dates:
a. On February 26 or 27, 2020, while still employed at Walt Dentistry, Ms. Gracias used her personal email account to email an application for a job at Oasis Orthodontics.
b. On March 1, 2020, while still employed at Walt Dentistry, Ms. Gracias used an Internet job recruitment website known as Indeed.com to apply for a job at Forest Hill Village Orthodontics.
c. Ms. Gracias was dismissed from her employment at Walt Dentistry on March 15, 2020.
d. In her job search log, which she proffered as evidence of her mitigation efforts, Ms. Gracias began applying for jobs on March 16, 2020, the day after her dismissal.
e. Ms. Gracias obtained replacement employment precisely seven months later, when on September 16, 2020, she accepted a job with Transitions Consulting Groups Inc. to provide dental practice management and advisory services. She volunteered to take unpaid training at Transitions Consulting for the first few months of her engagement.
f. In her job search log, which she proffered as evidence of her mitigation efforts, Ms. Gracias indicated that she continued applying for jobs until December 18, 2020, which notably is three months after she had obtained replacement employment with Transitions Consulting.
[35] The second step of the analysis of the alleged mitigation fraud is statistical, and this step involves classifying the evidence of Ms. Gracias’ job applications that are listed in her mitigation log. There are 139 job applications in Ms. Gracias’ mitigation log of which 138 job applications were made by Ms. Gracias between March 16, 2020 and December 18, 2020. There is also an application of April 28, 2021 to Village Orthodontics Dental Corp., which was logged mistakenly as being submitted on April 28, 2020. The parties and Mr. Hatch overlooked that this email message was mistakenly included in the log and in the undertaking briefs.
[36] As detailed below, 102 of the 139 job applications are alleged by Walt Dentistry to have been fabricated. As detailed below, 37 of the 139 job applications have not been impugned by Walt Dentistry.
[37] Ninety-six of the 139 applications are before September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting. Forty-three of the 139 applications are after September 16, 2020, at which time Ms. Gracias accepted a job offer from Transitions Consulting.
[38] Eighty-nine of the 139 application emails are messages from the job recruitment web site Indeed.com.
[39] Eighty-six of the 89 Indeed.com emails are challenged as falsified. These emails are identified by having an automatically populated field indicating the email address of a prospective employer, but the hyperlink (connection to a webpage) back to that prospective employer is apparent but not real and “the follow hyperlink,” which does activate, invariably connects to Forest Hill Village Orthodontics, to whom Ms. Gracias had made a job application on March 1, 2020.
[40] Dr. Walt had communications with: (a) Dr. Laski (with respect to two of the Indeed.com applications); (b) Dr. Nikolovski (with respect to one of the Indeed.com applications); (c) Dr. John Bozek (with respect to one of the Indeed.com applications); and (d) Dr. Tracy Handler (with respect to two of the Indeed.com applications). These dentists were principals of dental clinics listed on Ms. Gracias’ mitigation log. The dentists searched their respective office records and none of them could find evidence of job applications to them from Ms. Gracias.
[41] Three of the 89 Indeed.com emails appear to be genuine, namely:
a. The July 15, 2020 email acknowledging an application to Overtus Medical.
b. The July 15, 2020 email acknowledging an application to 123 Dentist.
c. The April 28, 2021 email acknowledging an application to Village Orthodontics Dental Corp. This is the application misdated in Ms. Gracias’ mitigation log.
[42] Mr. Hatch’s findings and opinion with respect to the Indeed.com emails is as set out below.
As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication.
In my professional opinion as a digital forensics expert, 86 out of the 89 Indeed Emails contain two suspicious anomalies that call their authenticity into question. First, the blue, underlined text describing the job applied for appears to be a hyperlink, but is not actually a hyperlink. Second, the “Follow” button links out to a different employer from the one shown in the email.
In stark contrast, the 3 Indeed Emails that do not have these two suspicious anomalies contain the correct characteristics that one would expect to see from a legitimate Indeed application confirmation email. Those 3 Indeed Emails have a hyperlink embedded in the blue, underlined text containing the description of the job applied for and the “Follow” button links out to the matching employer that is shown in the email.
According to my analysis, it is my professional opinion that the emails shown at pages 61, 132 and 160, are legitimate. However, I have significant reason, outlined in this report, to seriously question the authenticity of the other 86 Indeed Emails.
As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files).
[43] In addition to examining the Indeed.com emails, Mr. Hatch identified 9 email messages on Ms. Gracias’ Hotmail.com email account as having suspicious anomalies. He identified two types of anomalies. First, the parentheses on the left and right of the text of the email address were separated by a space, which is unusual. Second, placing a cursor over the email address text within the parentheses produced a hyperlink to “oasismarkham@gmail.com” which was inconsistent with the correspondence to the prospective employer identified in the email message.
[44] Mr. Hatch’s findings and opinions with respect to the nine emails are set out below:
As shown in this report, a .pdf document can be edited with great ease. When the authenticity of electronic evidence, such as emails, provided in the form of a .pdf document is in dispute, it is necessary to authenticate the evidence by having the original electronic copies of the email files themselves for analysis and authentication.
In my professional opinion as a digital forensics expert, the purported emails shown at pages 46, 47, 48, 50, 53, 73, 102, 110 and 115 of the Undertakings show anomalies that raise serious doubt as to their authenticity.
As such, if their authenticity is to be verified then the only way to do so would be to examine the electronic versions of the email files in their native format (probably, .eml or .msg files).
[45] The third step in the analysis is to consider the matter of motive and the evidence of Ms. Gracias and the opinion of Mr. Hatch. This analytical step is necessary because in the absence of motive, it is more plausible and more logical to attribute the anomalies to mistake, accident, mystery, or misadventure than is it to attribute the anomalies to fraud and falsification.
[46] Ms. Gracias’ evidence was that she genuinely made the job applications. She cannot explain the anomalies discovered by Dr. Walt and confirmed by Mr. Hatch. I believed her evidence which was more plausible than the evidence that she falsified the evidence of mitigation.
[47] There was no purpose to fabrication, and it would be idiotic for her falsify evidence. As the discussion later in this decision will reveal, the onus of proving a failure to mitigate was on Walt Dentistry. She had 37 of the 139 job applications that are acknowledged to be genuine. That would have been enough to rebuff Walt Dentistry’s attack, because the law is that mitigation needs only to be reasonable not comprehensive, and she did not need so much evidence, nor did she need to prove that she applied to every dental job posted on Indeed.com or posted elsewhere.
[48] Moreover, if she needed to apply for every dental job posted on Indeed.com or elsewhere about jobs in the vicinity of her home in Markham, Ontario, to prove mitigation, then why labour at fabricating 102 applications after the fact when making genuine applications was easily facilitated by the Indeed.com webpage and her own email account? Why include 43 applications after September 16, 2020, at which time Ms. Gracias had accepted a job offer from Transitions Consulting? It is more plausible that the impugned emails are the product of mistake than of misfeasance.
[49] The fourth step in the analysis is to note the paucity of the evidence about fabrication of .pdf documents. Mr. Hatch’s opinion identified anomalies in the emails, and while he provided an opinion of how the anomalies could be the product of advertent manipulation, he did not opine on whether the anomalies could be the product of mistakes in fashioning an email message using a copy of the email messages that Ms. Gracias had sent on February 26 or 27, 2020 to Oasis Orthodontics and on March 1, 2020 to Forest Hill Village Orthodontics, while still employed at Walt Dentistry. Mr. Hatch was only given the brief of documents. Neither he nor I have any idea of what Ms. Gracias testified at her examination for discovery about how she went about preparing her job applications. Further, there was no evidence from either side about how Indeed.com operates and whether or not email applications could be misdirected by mistaken entries. There was insufficient evidence to come to the conclusion that Ms. Gracias fabricated her job applications.
[50] The last step in the analysis is to consider what is the weight and significance of all of the evidence about the alleged mitigation fraud. Weighing all the evidence, I conclude that while it is possible that the evidence of mitigation was altered, it is far more plausible that the anomalies are a product of mistake or misadventure in Ms. Gracias’ use of Indeed.com or her use of her personal email account. With respect to the evidence of Drs. Laski, Nikolovski, and Weiss and the hearsay evidence of Drs. Bozek and Handler, that they did not find evidence of applications from Ms. Gracias, this evidence can be understood as consistent with the more plausible explanation that Ms. Gracias’ emails were misdirected by mistake and not fabricated after the fact, which she denied doing.
[51] Finally, there is the matter of Mr. Hatch opining that he could discover more about the genuineness of the email messages by examining electronic versions of the email files in their native format (probably, .eml or .msg files).
[52] With the summary judgment motion imminent, in response to the request that Ms. Gracias provide copies of the original email messages, she did not do so, and she explained that she had been the victim of a computer hack of her email files. I accept that this is a suspicious coincidence, but Internet hacks of email accounts are not uncommon, and more to the point, for the reasons I have already expressed, it remains more plausible that the impugned emails are the product of mistake or misadventure than of a grand and continuing mitigation fraud.
[53] I am not persuaded that Ms. Gracias fabricated her evidence of mitigation. I find as a fact that there was no failure to mitigate.
E. Facts
1. Employment History
[54] Ms. Gracias is a single mother and a resident of the City of Markham. She was born in 1980. She was thirty-nine years old at the time of her dismissal from employment at Walt Dentistry. She is a dental hygienist licensed by the College of Dental Hygienists of Ontario.
[55] Beginning in September 2017 and for the following two years, Ms. Gracias would occasionally, i.e., one or two shifts per month, be employed as a dental hygienist at Walt Dentistry, which has a dental clinic office in Maple, Ontario.
[56] On September 23, 2019, Ms. Gracias accepted a full time job offer from Walt Dentistry as a dental hygienist pursuant to a written offer of employment. She also had some administrative non-managerial office responsibilities. In her position as Orthodontic Hygienist, Ms. Gracias was responsible for assisting with clinical work. As the Office Administrator, she was responsible for day-to-day organization of the office, including scheduling procedures, communicating with patients, and marketing. She was given the responsibility of preparing content for Walt Dentistry’s Internet media. In addition, she acted as the Health and Safety Supervisor.
[57] For present purposes, the pertinent parts of the employment contract between Walt Dentistry and Ms. Gracias are set out below.
DR. DAVID WALT & DR. DAVID WALT DENTISTRY PROFESSIONAL CORPORATION (hereinafter collectively “the Employer”)
September 3 2019
Sonia Gracias
We are delighted to offer you employment with the Employer. We hope to be able to celebrate your joining us as the beginning of a fulfilling and rewarding experience with our company. The terms and conditions of this offer of employment are outlined below. You must sign below so all of the terms and conditions are in place before you commence employment on September 23, 2019.
This offer is being made to you on behalf of the Employer.
You will work as a Dental Hygienist and Office Administrator in our dental office. Your job description is attached hereto as Schedule “A”.
You will be entitled to vacation time and pay in the amounts set out by the Employment Standards Act. The Employer will attempt to accommodate any requests for vacation time; however, the Employer will retain sole discretion over scheduling of vacation time. As agreed upon verbally, the Employee [sic] will provide you with three weeks of paid vacation per year (6% vacation pay). You also agree to have your vacation pay being paid with each paycheque.
If you resign you are obliged to provide at least four (4) weeks’ written notice of your resignation.
Your employment may be terminated without cause for any reason upon the provision of notice equal to the minimum notice (or pay in lieu of notice) and severance (if applicable), as required to be provided under the terms of the Employment Standards Act. If your employment is terminated without cause, the Employer will continue your benefit coverage (if any) for such period as the Employment Standards Act shall require. By signing below, you agree that upon receipt of your entitlements under the Employment Standards Act, no further amounts shall be due and payable to you, whether under the Employment Standards Act, any other statute, or at common law. In no circumstances will you receive less than your entitlements to notice, severance (if applicable), and benefits continuation (if any), pursuant to the Employment Standards Act.
You agree that you will ensure that your direct or indirect personal interests do not, whether potentially or actually, conflict with the Employer’s interests. You further covenant and agree to promptly report any potential or actual conflicts of interest to the Employer. A conflict of interest includes, but is not expressly limited to the following:
(a) A private or financial interest in an organization which does business or which competes with our business interests;
(b) A private or financial interest, direct or indirect, in any concern or activity of ours of which you are aware of or ought reasonably to be aware;
(c) Engaging in unacceptable conduct, including but not limited to soliciting patients for dental work, which could jeopardize the patient’s relationship with us.
A failure to comply with this clause above constitutes both a breach of this agreement and cause for termination without notice or compensation in lieu of notice.
- Confidential Information – You recognize that in the performance of your duties, you will acquire detailed and confidential knowledge of our business, patient information, and other confidential information, documents, and records. You agree that you will not in any way use, disclose, copy, reproduce, remove or make accessible to any person or other third party, including family members, either during your employment or any time thereafter, any confidential information relating to our business, including office forms, instruction sheets, standard form letters to patients or other documents drafted and utilized in the Employer’s practice except as required by law or as required in the performance of your job duties.
For clarity, confidential information includes, without limitation, all information (in written, oral, tape, cd rom, diskette, and USB keys or any electronic form) which relates to the business, affairs, properties, assets, financial condition and plans, concerning or relating to the Employer, our dental practice or patients, and specifically includes all records, patient files, patient lists, patient names, patient addresses, patient telephone numbers, email addresses, invoices and/or statements, daily appointment sheets, radiographs, marketing information and strategies, advertising information and strategies, and financial information.
In the event that you breach this clause while employed by the Employer, your employment will be terminated without notice or compensation in lieu thereof, for cause. This provision shall survive the termination of this Agreement.
You agree that you will not remove any confidential information, as defined in paragraph 22 above, from the office at any time, without the Employer’s prior consent.
You are not permitted to use the internet, update Facebook, or perform any social networking on the internet during office hours, unless you are on your lunch or a break. You should also not receive personal phone calls, or receive or send text messages during working hours, except while on break. Personal phone calls should be restricted to emergency calls only. A breach of this provision will result in disciplinary action, up to and including termination for cause.
Our office utilizes an Office Policy Manual. The terms of that Manual, as amended from time to time, will form terms of your employment agreement with the Employer.
Severability - If any term, condition or provision in this Agreement shall be found to be illegal or unenforceable to any extent, for any reason, such provision shall be modified or deleted so as to make the balance of this Agreement, as modified, valid and enforceable to the fullest extent permitted by applicable law.
[58] Walt Dentistry stated in its factum that Ms. Gracias’ annual salary was approximately $75,000. Based on her Canada Revenue T4 slips, she also estimates her annual salary to be $75,000 ($6,250/month). Walt Dentistry did not provide an employee benefits plan. There was a discretionary bonus program, but Ms. Gracias has abandoned any claim for a prorated bonus and, therefore, no more need be said about the bonus plan.
[59] As noted above, Ms. Gracias was dismissed without cause after five-months, twenty-one days of full-time employment.
2. The Dismissal
[60] In her original Statement of Claim, Ms. Gracias pleads that on March 4, 2020, she told Dr. Walt that she was diagnosed with cancer and required chemotherapy treatment which would necessitate some time off work. She pleaded that on March 12, 2020, she told him that she would require time off work to attend to her son whose school had closed because of the Covid-19 pandemic. She pleads that in the absence of a legitimate reason for her termination it may have been based on her family status and disability contrary to the Ontario Human Rights Code.
[61] In its original Statement of Defence, Walt Dentistry pleads a much different account of the termination of Ms. Gracias’ employment. It pleads a lengthy list of employment misconduct that would have justified a dismissal with cause and in paragraph 21 of its pleading, Walt Dentistry alleges that:
- Although Ms. Gracias’ conduct constituted willful misconduct and just cause for termination, Walt DPC decided not to assert cause. Instead, on March 15, 2020, Walt DPC dismissed Ms. Gracias without cause. Upon doing so, it provided her with one (1) week of termination pay, in accordance with her entitlements under the Employment Standards Act, 2000, and her employment contract.
[62] In the amended Statement of Claim and the amended Statement of Defence, the case is pleaded as a typical case of a dismissal without cause and without harsh vindictive allegations.
[63] On March 15, 2020, Ms. Gracias’ employment was terminated immediately without cause. She received the following termination letter that enclosed a Release and Indemnity Agreement:
Dear Sonia
This letter confirms that your employment has been terminated, effective immediately. In order to assist you in your transition, Walt Orthodontics (the "Clinic") is prepared to provide you with the following:
You will receive your regular earnings and accrued vacation pay, if any. to the present date.
Based on the terms of your employment contract, you are entitled to one week's pay. However, conditional upon your: (a) signing the enclosed Release and Indemnity, and (b) signing and returning your acceptance on the enclosed duplicate of this letter, the Clinic will pay you a lump sum payment of $1,507.74, representing an additional one week's pay. The total gross payment of termination pay, if you sign the required documentation will be $3,015.47.
I would appreciate your returning the signed release and duplicate of this letter within 7 days of this letter's date. Upon request, you will be provided with a letter confirming the duration of you [sic] employment and the duties performed by you while employed.
I wish to thank you for all of your efforts and contributions to Walt Orthodontics and to wish you the best in all of your future endeavours. Sincerely,
Dr. David Walt
[64] Upon her dismissal, Walt Dentistry paid Ms. Gracias $1,507.74 with respect to her Employment Standards Act, 2000 entitlements.
3. The Aftermath of the Dismissal
[65] Within day or at most a few weeks, Ms. Gracias retained Monkhouse Law and on March 30, 2020, her lawyers write Wilton Martin Litigation Lawyers, who are the lawyers for Walt Dentistry requesting an offer to settle Ms. Gracias’ wrongful dismissal claim. The law firm requests a reference letter of employment so that Ms. Gracias may mitigate. The letter is never provided.
[66] Ms. Gracias received CERB for the period March 15, 2020 to September 20, 2020. In total, she received $16,000 in CERB payments.
[67] In her employment applications, Ms. Gracias did not use Dr. Walt as a reference.
[68] I have set out above, the evidence and made my findings about Ms. Gracias’ attempts to mitigate.
[69] On September 16, 2020, Transitions Consulting Groups Inc. hired Ms. Gracias to provide dental practice management and advisory services. She volunteered to take unpaid training at Transitions Consulting for the first few months of her engagement.
[70] It should be noted that Ms. Gracias was dismissed at the outset of the Covid-19 pandemic with its public health rollercoaster of disturbances to domestic and economic life in Ontario and around the world with quarantines, social distancing, lockdowns, closures and partial closures of businesses and services.
[71] The parties expressed their personal opinions on the influence of the pandemic on Ms. Gracias’ efforts, which started before her dismissal, to find a new job. Her personal evidence was that Covid-19 diminished the prospects of a replacement job because dentists were laying off staff not hiring new staff. Dr. Walt’s personal evidence was that the circumstances of the pandemic should have made it easy for a person with Ms. Gracias’ qualifications and experience to find a new job.
[72] I shall discuss the significance of the Covid-19 pandemic to Ms. Gracias’ wrongful dismissal claim further below but as a factual matter, I prefer Dr. Walt’s anecdotal evidence over Ms. Gracias’ evidence. To be clear and to avoid confusion, I prefer Dr. Walt’s evidence insofar as it is relevant to the issue of mixed fact and law about the appropriate notice period. I prefer Ms. Gracias’ evidence insofar as it is relevant to the factual issue of whether she made reasonable attempts to mitigate her loss of employment by seeking a new job.
[73] I turn now to the matter of the application of the procedural law and the substantive law to the facts of the immediate case.
F. Is the Case Appropriate for a Summary Judgment?
[74] The first issue to determine is whether the case at bar is an appropriate one for a summary judgment.
[75] Rule 20.04(2)(a) of the Rules of Civil Procedure[^6] provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”
[76] If a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial; this will be the case when the summary judgment process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts; and (c) is a proportionate, more expeditious and less expensive means to achieve a just result.[^7] The motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to make a fair and just determination.[^8]
[77] Both parties have moved for summary judgment, and both parties submit that the case is appropriate for a summary judgment. The parties’ mutual desire for a summary determination in employment disputes is a common and ordinary civil litigation phenomenon, and courts have recognized that wrongful dismissal cases are well-suited for a summary determination, because it is rare in employment law cases that the full forensic resources of a trial are required to decide the issues of fact and to apply the law. Summary judgment motions in wrongful dismissal matters are to assist the parties in obtaining affordable access to the civil justice system, and thus many wrongful dismissal actions have been resolved by summary judgment.[^9]
[78] As the above description of the facts reveals, the immediate case, however, is far from typical. During the hearing, I advised the parties that I was seriously considering whether given the scandalous allegations of fabrication of evidence made against Ms. Gracias, I should decline on jurisdictional grounds to decide the summary judgement and should remit the action to a full trial.
[79] After reserving judgment and reflecting long and hard on whether the case could be fairly and justly determined on a summary judgment motion and having regard to such factors as: (a) Ms. Gracias being cross-examined in court, including being questioning by me; (b) the principle that a party is to be taken to have put his or her best evidentiary foot forward; (c) the considerable and expensive legal resources that the parties had already invested in the litigation; (d) the adequacy of the evidentiary record for a typical employment genre summary judgment motion; and (e) the unlikeliness that further evidence would resolve how the anomalies in the mitigation records happened without or without malfeasance, I decided that the case was appropriate for a summary determination.
[80] This miserable litigation can and will be fairly and justly terminated without the necessity of a full trial.
G. Legislative Background
[81] For the purposes of determining this summary judgment motion, the pertinent provisions of the Employment Standards Act, 2000 are sections 5, 54, and 57, which state:
No contracting out
5 (1) Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.
Greater contractual or statutory right
(2) If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.
No termination without notice
54 No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer,
(a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or
(b) has complied with section 61.
Employer notice period
57 The notice of termination under section 54 shall be given,
(a) at least one week before the termination, if the employee’s period of employment is less than one year;
[82] For the purposes of determining this summary judgment motion, also pertinent is section 2, paragraph 3 of Ontario Regulation 288/01 (Termination and Severance of Employment), which states:
Employees not entitled to notice of termination or termination pay
(1) The following employees are prescribed for the purposes of section 55 of the Act as employees who are not entitled to notice of termination or termination pay under Part XV of the Act:
An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.
H. Analysis and Discussion
1. Issues
[83] With Walt Dentistry’s allegation that Ms. Gracias fabricated evidence of mitigation resolved in the negative for failure of proof, Ms. Gracias’ wrongful dismissal case presents the following issues of mixed fact and law to be resolved.
[84] The first issue to be resolved is the dispute between the parties as to whether Ms. Gracias has no claim because she has no entitlement to common law damages and is left with her Employment Standards Act, 2000 entitlements, which she has already received. For the reasons set out below, the first issue is resolved in Ms. Gracias’ favour.
[85] The second issue to be resolved is that of applying the principles of damages assessment for a wrongful dismissal to the facts of the immediate case. The second issue involves the sub-issues of: (a) identifying the general principles for determining a reasonable notice period; (b) specifying the significance of previous part-time employment to the reasonable notice period; (c) specifying the significance of the Covid-19 pandemic to the reasonable notice period; (d specifying the significance of CERB to the assessment of the reasonable notice period; and (e) specifying the significance of the absence of a reference letter to the assessment of the reasonable notice period.
[86] For the reasons set out below, I award, Ms. Gracias a three-month notice period less Employment Standards Act, 2000 entitlements, i.e., $17,242.26 ($18,750 - $1,507.74), with pre-judgment interest, which I calculate to be $344.85,[^10] for a judgment of $17,587.11. The CERB (Canada Emergency Response Benefit) is not a mitigation credit.
2. The Employment Contract and the Entitlement to Common Law Damages for Dismissal without Cause
[87] Ms. Gracias had an employment contract of undefined duration, and at common law in the absence of express and clear contractual language to the contrary, an employee with an indefinite length of employment is entitled to reasonable notice of his or her dismissal if the dismissal is without cause.[^11]
[88] However, under what may be called the rule of Waksdale v. Swegon North America,[^12] if there is contract language that would preclude an employee from his or her entitlement to reasonable notice of the dismissal without cause, then that preclusive provision is unenforceable if the employment contract viewed in its entirety contravenes s. 5 of the Employment Standards Act, 2000, which provides that no employer and no employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.
[89] In other words, employers and employees can rebut the presumption of reasonable notice by agreeing to a different notice period; but their agreement will be enforceable only if it in its entirety complies with the minimum employment standards of the Employment Standards Act, 2000; if the contract does not comply with the Act, then the employee is entitled to reasonable notice of termination.[^13]
[90] If a term of the employment contract denies the employee the benefits that he or she would be entitled to under the Employment Standards Act, 2000, then any term of the employment contract that would preclude the employee from a common law notice period is unenforceable even if the employee received all the benefits to which he or she was entitled to under the Act.[^14] If a termination provision of the employment contract contravenes the Employment Standards Act, 2000, the valid termination provisions of the contract are not saved by a severability clause and the employee will be entitled to his or her entitlements under the common law.[^15] If a provision within a termination clause conflicts with the minimum standards prescribed by the Employment Standards Act, 2000, all termination provisions are unenforceable.[^16]
[91] In Waksdale, the employee was dismissed without cause. The employment contract clearly denied the employee reasonable notice if there was a dismissal without cause. The employment contract, however, addressed the employee’s entitlements if dismissed with cause in a way that it was conceded was void because the dismissal with cause provision contravened the Employment Standards Act, 2000. Notwithstanding that the dismissal with cause provision was valid, the employee was entitled to common law damages in lieu of reasonable notice because the with cause provision of the employment contract contravened the Act.
[92] Waksdale v. Swegon North America has been followed in Alarashi v. Big Brothers Big Sisters of Toronto,[^17] Sewell v. Provincial Fruit Co. Limited,[^18] Ojo v. Crystal Claire Cosmetics Inc.,[^19] Perretta v. Rand A Technology Corporation,[^20] and Pavlov v. The New Zealand and Australian Lamb Company Limited.[^21]
[93] In the immediate case, Ms. Gracias’ employment contract expressly and clearly precludes her from an entitlement to reasonable notice for a dismissal without cause. Ms. Gracias was dismissed without cause, and but for the rule of Waksdale v. Swegon North America, she would have no common law wrongful dismissal claim. However, the rule does apply to her case, and therefore, she was entitled to reasonable notice rather than the immediate notice of dismissal that she received.
[94] In the immediate case, while the termination without cause provision in the employment contract may be lawful, the termination for cause provision contracts out of the Act and is void. The unlawful termination provision cannot be severed, and it taints the entirety of the termination provisions. More precisely, the termination provision for cause provisions would deny Ms. Gracias any notice and her benefits under the Employments Standards Act, for conduct that may not amount to wilful misconduct which is the benchmark set by the Act.
[95] Ont. Reg. 288/01 (Termination and Severance of Employment) provides that an employee is entitled to notice of termination, termination pay, and severance pay unless the employee “has been guilty of wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer.” In Kashaba v. Procom Consultants Group Ltd.,[^22] Justice C. Brown held that a termination for cause provision that specified that a dismissal for cause disentitled the employee to notice or termination pay was contrary to the Employment Standards Act, 2000 because even for dismissals with cause an employee is entitled to the benefits of the Act, unless the dismissal was for wilful misconduct, which is a higher standard than conduct that would justify a dismissal for cause under an employment contract.[^23] In Plester v. PolyOne Canada Inc.,[^24] the Court of Appeal held that, a termination of employment for “wilful misconduct” under the Employment Standards Act, 2000, requires a higher standard of misconduct than the common law standard of dismissal for cause. A dismissal for wilful misconduct entails that the employee had a mens rea, a subjective advertent intent, whereas the common law standard of just cause could occur through inadvertence, carelessness, or thoughtlessness.
[96] In my opinion, the termination for cause provisions in Ms. Gracias’ employment contract are not compliant with the Employment Standards Act, 2000 and she is entitled to her common law entitlements for a dismissal without cause.
I. Common Law Damages for Dismissal without Cause
1. General Principles
[97] An employee who is dismissed without reasonable advance notice of termination is entitled to damages for breach of contract based on the employment income they would have earned during the reasonable notice period, less any amounts received in mitigation of the loss.[^25] The determination of a reasonable notice period is a principled art and not a mathematical science. In Minott v. O'Shanter Development Co.,[^26] Justice Laskin wrote at para. 62:
- Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and ordinarily, there is no "right" figure for reasonable notice. Instead, most cases yield a range of reasonableness.
[98] In Cronk v. Canadian General Insurance Co.,[^27] Associate Chief Justice Morden stated at para. 85:
- The governing rule is that a dismissed employee, in the position of Ms. Cronk, is entitled to reasonable notice or payment in lieu of it. The legal precept of reasonable notice, which is the essence of this rule, is a standard and not, itself, a rule. Unlike a rule, it does not specify any detailed definite state of facts which, if present, will inevitably entail a particular legal consequence. Rather, its application enables a court to take all of the circumstances of the case into account. It allows for individualization of application and, obviously, involves the exercise of judgment.
[99] There is no catalogue as to what is reasonable notice in particular classes of cases, and the reasonableness of notice must be determined by reference to the facts of each particular case.[^28] In determining the length of notice, the court should consider, among other possible factors: (1) the character of employment; (2) the length of service; (3) the age of the employee; and (4) the availability of similar employment having regard to the experience, training, and qualifications of the employee.[^29] The weight to be given each factor will vary according to the circumstances of each case, and the judge in a wrongful dismissal case is required to exercise judgment in determining what factors are of particular importance. In determining the reasonable notice period, the court should not apply as a starting point any rule of thumb that would attribute so many weeks or months of notice per year of service, because such an approach privileges length of service above all relevant factors in determining notice, and each case must be considered having regard to its particular facts.[^30]
[100] The character of employment factor tends to justify a longer notice period for senior management employees or highly skilled and specialized employees and a shorter period for lower rank or unspecialized employees.[^31]
[101] Generally speaking, the longer the duration of employment, the longer the reasonable notice period.[^32]
[102] Generally speaking, a longer notice period will be justified for older long-term employees, who may be at a competitive disadvantage in securing new employment because of their age.[^33]
[103] Economic factors such as a downturn in the economy or in a particular industry or sector of the economy that indicate that an employee may have difficulty finding another position may justify a longer notice period.[^34]
[104] The effect of the Covid-19 pandemic, which has affected the entire Canadian and world economy, may justify a longer notice period because of the attendant difficulty finding another employment position.[^35]
[105] Wrongful dismissal is a breach of contract claim, and the normal principles of damages assessment apply to the determination of the quantum of damages, including the principle that a plaintiff cannot recover for avoidable loss; i.e., the mitigation principle.[^36] The so-called duty of a plaintiff to mitigate is somewhat mislabeled as a duty because the duty is a matter of self-interest and is not a duty owed to others. The policy idea behind the so-called duty to mitigate is that a plaintiff should not recover for losses that he or she could have avoided.
[106] The onus is on the defendant to establish a failure to mitigate.[^37] More particularly, the onus is on the employer to prove that the employee would likely have found a comparable position reasonably adapted to his or her abilities and that the employee failed to take reasonable steps to find that comparable position.[^38] In assessing the innocent party's efforts at mitigation, the courts are tolerant, and the innocent party need only be reasonable, not perfect.[^39]
2. The Significance of Previous Part-time Employment
[107] In her late-arriving affidavit Ms. Gracias submitted that she provided continuous uninterrupted part-time work beginning in September 2017 and therefore she is entitled to notice based on her total years of service which is equivalent to two years and seven months.
[108] I disagree with this submission for two reasons. First, Ms. Gracias’ Statement of Claim is pleaded on the factual basis that she began her employment with Walt Orthodontics on or about September 23, 2019. Second, I find as a fact that her part-time work was so intermittent and minimal that it cannot be regarded as continuous nor significant enough to be a factor in the assessment of what is a reasonable notice period.
[109] I accept that there may be cases in which prior work may be relevant to the determination of the notice period;[^40] however, the case at bar is not one of those cases.
3. The Significance of the Covid-19 Pandemic
[110] As noted above, economic factors such as a downturn in the economy or in a particular industry or sector of the economy that indicate that an employee may have difficulty finding another position may justify a longer notice period. And, also noted above, the effect of the Covid-19 pandemic may justify a longer notice period because of the attendant difficulty finding another employment position.
[111] The effect of the Covid-19 pandemic obviously was very harmful for the overall economy but its effect on particular sectors of the labour market was not uniform. For example, there was a high demand for nurses, health care workers, and others that were in the front lines of the battle against the disease or in providing essential services. The point to note is that it is a matter of evidence whether or not the pandemic harmed any particular job market. In the immediate case, as I noted above, I prefer Dr. Walt’s evidence that there was a robust market or a robust enough market for dental hygienists that the downturn in the economy does not justify a longer notice period in the immediate case. Dr. Walt’s evidence also was supported by the circumstance that Ms. Gracias made almost 140 applications and almost 100 of them were in response to job recruitment postings on Indeed.com.
4. Is the CERB Deductible from the Damages for Dismissal without Cause?
[112] As noted above, after her dismissal from employment, which occurred during the Covid-19 pandemic, Ms. Gracias received $16,000 in CERB payments.
[113] In the British Columbia case of Shalagin v. Mercer Celgar Limited Partnership,[^41] CERB payments, like unemployment insurance benefits, were deducted from the compensation payable in lieu of notice.
[114] In contrast, in the Ontario case of Iriotakis v. Peninsula Employment Services Limited,[^42] the Nova Scotia case of Slater v. Halifax Herald Limited,[^43] and in the British Columbia case of Snider v. Reotech Construction Ltd.,[^44] CERB payments were not deducted from a wrongful dismissal reward.
[115] I agree with the reasons in Iriotakis, Slater, and Halifax Herald, and hold that CERB is not a mitigation credit in the immediate case.
5. The Significance of a Reference Letter
[116] In Nemirovski v. Socast Inc.,[^45] the court considered the circumstance that the employer had not assisted in the employee’s mitigation efforts by failing to provide a reference letter as a factor favouring a longer notice period. There is no obligation on an employer to provide assistance to the former employee, and in the immediate case, given the bitter and strained relationship that had developed between the parties, it was a pro forma more or less meaningless request. In the immediate case, it was understandable that Dr. Walt did not provide a reference letter. I regard the absence of a reference letter as a sterile factor in the immediate case.
6. Application of the Principles of Damages for Wrongful Dismissal to the Immediate Case
[117] In my opinion, the appropriate reasonable notice period in the immediate case ranges between one month to three months.
[118] Ms. Gracias was already looking for a replacement job several weeks before she was dismissed, which says a great deal about how discontented both parties were about her role at Walt Dentistry. She was not a valued employee, and she did not have any management responsibilities. The duration of her employment was less than six months. She is in the prime of her career with considerable work experience and her age, credentials, and experience presented competitive advantages in the job market. Her evidence and Dr. Walt’s evidence reveals that the Covid-19 pandemic was not a major impediment to her finding a new position. Her efforts at mitigation were reasonable. Balancing the various factors in play in the immediate case, three months is a reasonable notice period.
[119] With a three-month notice period based on an annual salary of $75,000 and deducting her Employment Standards Act, 2000 payment yields a judgment of $17,587.11 inclusive of prejudgment interest.
J. Conclusion
[120] For the above reasons, I award Ms. Gracias $17,587.11.
[121] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Gracias’ submissions within twenty days of the release of these Reasons for Decision, followed by Walt Dentistry’s submissions within a further twenty days.
[122] If the parties make submissions, I alert them that based on what I presently know about the prosecution of the claim and of the defence, there is some serious explaining for them to do to justify a costs award to either party and it is quite possible that there shall be no order as to costs.
Perell, J.
Released: May 17, 2022.
COURT FILE NO.: CV-20-00640250-0000
DATE: 20220517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SONIA GRACIAS
Plaintiff
- and -
DR. DAVID WALT DENTISTRY PROFESSIONAL CORPORATION
Defendant
REASONS FOR DECISION
PERELL J.
Released: May 17, 2022
[^1]: R.R.O. 1990, Reg. 194.
[^2]: S.O. 2000, c. 41.
[^3]: R.S.O. 1990, c. H.19.
[^4]: A.G. v. Hitchcock (1847), 1 Exch. 91.
[^5]: Girao v Cunningham, 2020 ONCA 260.
[^6]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[^7]: Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 50.
[^8]: Hryniak v. Mauldin, 2014 SCC 7 at paras. 51-55; Wise v. Abbott Laboratories, Ltd., 2016 ONSC 7275 at paras. 320-336; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2016 ONSC 5784 at paras. 122-131.
[^9]: Edmond v. Algonquin College, 2018 ONSC 1898 at para. 87; Asgari v. 975866 Ontario Ltd., 2015 ONSC 7508 at para. 4; Peticca v. Oracle ULC, 2015 ONSC 2584; Beatty v. Best Theratronics Ltd., 2014 ONSC 3376, aff’d 2015 ONCA 247.
[^10]: Two years simple interest (April 29, 2020 – April 27, 2022) at 1.0 %.
[^11]: Waksdale v. Swegon North America, 2020 ONCA 391; Rossman v. Canadian Solar Inc., 2019 ONCA 992: Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679; Wood v. Fred Deeley Imports Ltd. 2017 ONCA 158; Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 SCR 986; Carter v. Bell & Sons (Canada) Ltd., 1936 CanLII 75 (ON CA), [1936] O.R. 290 (C.A.).
[^12]: 2020 ONCA 391.
[^13]: Waksdale v. Swegon North America, 2020 ONCA 391; Wood v. Fred Deeley Imports Ltd. 2017 ONCA 158.
[^14]: Wood v. Fred Deeley Imports Ltd. 2017 ONCA 158; Stevens v. Sifton Properties Ltd., 2012 ONSC 5508; Wright v. Young and Rubicam Group of Cos. (Wunderman), 2011 ONSC 4720.
[^15]: Waksdale v. Swegon North America, 2020 ONCA 391; North v. Metaswitch Networks Corporation, 2017 ONCA 790.
[^16]: Waksdale v. Swegon North America, 2020 ONCA 391; Rossman v. Canadian Solar Inc., 2019 ONCA 992; Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679; Wood v. Fred Deeley Imports Ltd. 2017 ONCA 158.
[^17]: 2019 ONSC 4510.
[^18]: 2020 ONSC 4406.
[^19]: 2021 ONSC 1428.
[^20]: 2021 ONSC 2111.
[^21]: 2021 ONSC 7362.
[^22]: 2018 ONSC 7617.
[^23]: See also King v. DST Systems Inc., 2018 ONSC 533.
[^24]: 2013 ONCA 47.
[^25]: Sylvester v. British Columbia, 1997 CanLII 353 (SCC), [1997] 2 S.C.R. 315.
[^26]: (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 at para. 62 (C.A.).
[^27]: Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505 (C.A.).
[^28]: Duynstee v. Sobeys Inc., 2013 ONSC 2050 at para. 17; Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362; Minott v. O'Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (C.A.); Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701 at para. 83; Bardal v. Globe & Mail, 1960 CanLII 294 (ON SC), [1960] O.J. No. 149 (H.C.J.).
[^29]: Paquette v. TeraGo Networks Inc., 2015 ONSC 4189, at paras 21–31, aff'd 2016 ONCA 618; Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505 (C.A.); Machinter v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986; Bardal v. Globe & Mail, 1960 CanLII 294 (ON SC), [1960] O.J. No. 149 (H.C.J.).
[^30]: Beatty v. Best Theratronics Ltd., 2015 ONCA 247; Love v. Acuity Investment Management Inc., 2011 ONCA 130; Minott v. O'Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (C.A.); Cowper v. Atomic Energy of Canada Ltd., [1999] O.J. No. 2021 (S.C.J.); Dey v. Valley Forest Products (1995), 1995 CanLII 5582 (NB CA), 162 N.B.R. (2d) 207 at p. 215 (C.A.).
[^31]: Bernier v. Nygard International Partnership, 2013 ONSC 4578 at para. 57; Tull v. Norske Skog Canada Ltd., 2004 BCSC 1098; Teitelbaum v. Global Travel Computer Holdings Ltd. (1999), 41 C.C.E.L. (2d) 275 (Ont. S.C.J.); Bullen v. Proctor & Redfern Ltd., 1996 CanLII 8135 (ON SC), [1996] O.J. No. 340 at paras. 7-10 (Gen. Div.); Cronk v. Canadian General Insurance Co., (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505 (C.A.).
[^32]: Bullen v. Proctor & Redfern Ltd. 1996 CanLII 8135 (ON SC), [1996] O.J. No. 340 at para. 21. (Gen. Div.).
[^33]: McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 at para. 92.
[^34]: Hunsley v. Canadian Energy Services LP, 2020 ABQB 724; Zoldowski v. Strongco Corporation, 2015 ONSC 5485; Leduc v. Canadian Erectors Ltd., [1996] O.J. No. 897 at paras. 34-36 (Gen. Div.); Bullen v. Proctor & Redfern Ltd., 1996 CanLII 8135 (ON SC), [1996] O.J. No. 340 at paras. 24-29 (Gen. Div.); Corbin v. Standard Life Assurance, 1995 CanLII 3852 (NB CA), [1995] N.B.J. No. 461 (C.A.); Thomson v. Bechtel Canada, [1983] O.J. No. 2397 (H.C.J.).
[^35]: Miller v. Luminultra Technologies Ltd., 2022 NBQB 60; Kraft v. Firepower Financial Corp., 2021 ONSC 4962; Lamontagne v. J.L. Richards & Associates Ltd., 2021 ONSC 2133, aff’d 2021 ONSC 8049 (Div. Ct.); Yee v. Hudson’s Bay Company, 2021 ONSC 387; Mohammed v. Dexterra Integrated Facilities Management, 2020 BCSC 2008.
[^36]: Somer v. Canac Kitchens Ltd., a division of Kohler Ltd., [2006] O.J. No. 5052; Apeco of Canada Ltd. v. Windmill Place, 1978 CanLII 186 (SCC), [1978] 2 S.C.R. 385; Karas v. Rowlett, 1943 CanLII 53 (SCC), [1944] S.C.R. 1; British Westinghouse Electric & Mfg. Co. Ltd. v. Underground Electric R. Co. of London, Ltd., [1912] A.C 673 (H.L.).
[^37]: Michaels v. Red Deer College I, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324; Dobson v. Winton & Robbins Ltd., 1959 CanLII 19 (SCC), [1959] S.C.R. 775.
[^38]: Link v. Venture Steel Inc., 2010 ONCA 144; Di Tomaso v. Crown Metal Packaging Canada LP, 2010 ONSC 5761; Palmer v. Clemco Industries Inc., 2010 BCSC 230.
[^39]: Adjemon v. Brook Compton North America, [2008] O.J. No. 2238 (S.C.J.); Banco de Portugal v. Waterlow & Sons Ltd., [1932] A.C. 452 (H.L.); Leduc v. Canadian Erectors Ltd., [1996] O.J. No. 897 (Gen. Div.).
[^40]: McGraw v Southgate (Township), 2021 ONSC 7000.
[^41]: 2022 BCSC 112.
[^42]: 2021 ONSC 998.
[^43]: 2021 NSSC 210.
[^44]: 2021 BCPC 238.
[^45]: 2017 ONSC 5616.