COURT FILE NO.: CV-14-2608-00
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANDY SCAMURRA
Plaintiff
Kristian Borg-Olivier, for the Plaintiff
- and -
SANDY SCAMURRA CONTRACTING LTD., SANDY SCAMURRA & SONS LTD., 726127 ONTARIO LTD. and AFJ DISPOSAL INC.
Defendants
Dwayne Kinkead, for the Defendants
REASONS FOR JUDGMENT
Petersen J.
INTRODUCTION
Overview
[1] The Plaintiff, Sandy Scamurra, brings an action against four corporate Defendants for wrongful dismissal. He alleges that the Defendants are common employers and that he worked for them for 26 years before being summarily dismissed without cause. He claims that they owe him damages for pay in lieu of appropriate notice of his termination, as well as for lost employment benefits during the notice period.
[2] The Defendants assert that the Plaintiff worked as an independent contractor and was not an employee. In the alternative, if the Court finds that the Plaintiff was an employee, the Defendants assert that he was employed by only one of them, namely AFJ Disposal Inc., and for only seven years. They further assert that his employment was terminated for cause and, in any event, with six months’ notice despite the cause. They take the position that no damages are owed to him and seek to have his action dismissed.
Nomenclature
[3] The corporate Defendants are all family-owned businesses. The principals of the corporations who testified on behalf of the Defendants, Felix Scamurra and Albert Scamurra, are the Plaintiff’s brothers. Their other siblings, John Scamurra and Rita Scamurra, and their father, Sandro (Sandy) Scamurra, were repeatedly mentioned during the trial. To avoid confusion, I will refer to each of the siblings by their first name, to the father as “Sandy Sr.”, and to the Plaintiff as “Sandy Jr.” No disrespect is intended.
Consequences of Defendants’ Non-Disclosure
[4] The Defendants provided no disclosure prior to the trial, despite being in possession and control of voluminous business records relevant to the litigation. Many of the issues in dispute likely could have been resolved with reference to those documents. The Defendants provided no explanation for why they did not comply with their pre-trial disclosure obligations.
[5] At various points during the trial, the Defendants attempted to adduce as evidence documents that had not been disclosed or had only been delivered to the Plaintiff’s lawyer on the eve of the trial or during the trial. Unless Sandy Jr. consented to their admission into evidence, I refused to admit those documents because of the prejudice that would inure to him as a result of their late production. Some of the documents were inadmissible in any event because they were not relevant to the issues before me. Their content pertained exclusively to defences that were not pleaded by the Defendants.
[6] I mention the Defendants’ non-compliance with pre-trial disclosure obligations because I have drawn adverse inferences against them based on their unexplained failure to produce relevant records. As set out in more detail below, where Sandy Jr.’s testimony and Albert’s or Felix’s testimonies are in conflict, and relevant business records would have assisted the court in assessing the credibility of their evidence, I infer that the Defendants did not produce the relevant documents because the evidence would have supported the Plaintiff’s version of the events.
History of Scamurra Family Businesses
[7] The facts pertaining to the family businesses are not in dispute. The following summary provides useful context.
[8] The Defendant Sandy Scamurra Contracting Ltd. (“SS Contracting”) provides sewer, watermain, and drain services, including demolition, excavation, and concrete work. It also has snow plough contracts with customers in winter months. The company was started by Sandy Sr. in the 1960s and was inherited by his children in equal shares when he died in 1996. Albert and Felix became the directors of the company. Sandy Jr. became a shareholder, but he sold his interest in the company to his siblings in a Share Purchase Agreement (“SPA”) executed in September 2013.
[9] The Defendant 726127 Ontario Ltd. (“726 Ont.”) is a holding company created by Sandy Sr. and eventually inherited by the Scamurra siblings in equal shares when he died. Over time, the company has purchased and sold several investment properties. Those acquisitions and sales were directed by Sandy Sr. up until his death in 1996. Since then, Albert and Felix have been the sole directors of 726 Ont. Sandy Jr. sold his interest in this company to his siblings in the September 2013 SPA.
[10] The Defendant Sandy Scamurra and Sons (“SS & Sons”) was incorporated in the late 1980s to deal with the trucking portion of the contracting business. The precise year of its incorporation is not in evidence. Albert gave uncontested evidence that he, Felix, and their father, Sandy Sr., were the initial shareholders and directors. Albert and Felix are currently its only directors and shareholders.
[11] 726 Ont. owns a building at 1261 Britannia Road East in Mississauga, which is where the administrative head offices for SS Contracting and the other Scamurra family businesses are located. Rita and a bookkeeper named Vivian Sgambelluri work at that location. Albert and Felix also have offices in the building.
[12] In or about 1990, Sandy Sr. decided to purchase another building on Britannia Road East. Sandy Jr. testified that his father did so through 726 Ont. Albert testified that he thought the building was purchased by SS & Sons, but he was not 100 percent sure. In any event, one of the Scarmurra family businesses acquired the property.
[13] Sandy Sr. decided to open a banquet hall and catering business on the ground floor of the newly acquired building. He rented office space on the second floor of the building to generate additional income.
[14] Scamurra Banquet Hall (“SBH”) was incorporated in the early 1990s to handle the banquet and catering business. It is unclear from the record whether Sandy Sr. was initially the sole shareholder. It is also unclear who the initial directors were. However, I find it probable that Sandy Jr. was one of the directors because he had signing authority for the company.
[15] The banquet hall was in business at that location until 2005. SBH eventually ceased operating and was dissolved for failure to pay taxes. Given its dissolution, SBH is not named as a defendant in this action.
[16] The Defendant AFJ Disposal Inc. (“AFJ”) was incorporated around the same time that the banquet hall was closed. It is a disposal company that provides customers with large garbage bins for removal of debris. Albert, Felix, and John were always the only shareholders and directors of that company. It was sold to a third party approximately four years ago; the new owners have the benefit of an indemnification clause in respect of potential exposure to liability arising from this proceeding.
Scamurra Siblings’ Employment History
[17] Each of the Scamurra siblings has been employed by SS Contracting. Albert started working for the company full time in 1979. Felix started in or about 1984. Both have worked for SS Contracting continuously throughout their adult lives. They have been running the company since their father’s death in 1996.
[18] Rita is employed as an administrative assistant for SS Contracting. It is unclear from the evidence how long she has worked for the company, but Albert testified that she has spent her entire professional life there.
[19] John is currently employed as a truck driver for the company. It is unclear when his employment commenced. Sandy Jr. gave uncontested evidence that John ran the trucking aspect of the contracting business through SS & Sons for a period. Albert confirmed that John has worked as a truck driver for one or other of the Scamurra family businesses his entire adult life.
[20] Sandy Jr. testified that he started working for SS Contracting after completing college in the summer of 1986. Although it was not his original career plan, he said he ended up working full-time as a general labourer for five years because the construction industry was booming, and his father needed help. In contrast, Albert testified that Sandy Jr. only ever worked summers in the 1980s and part-time in winters doing snow removal for SS Contracting.
[21] I prefer and accept Sandy Jr.’s evidence on this point because I find it to be more probable. He testified that his sole source of income from 1986 to 1991 was the compensation he received for the labour he performed for SS Contracting. He further testified that he was earning approximately $50,000 annually. This evidence was neither challenged on cross-examination nor contradicted by any other evidence, so I accept it as true. A salary of $50,000 would have been unusually high for a part-time, inexperienced, and unskilled general labourer in the 1980s. Given his income level, it seems likely that he was working full-time hours for the company.
[22] Sandy Jr. was asked by his father to manage the banquet hall when it was opened in 1991. He was exclusively responsible for running the banquet hall and catering business from its inception until 2005. He handled marketing, sales, acquisition of supplies, customer service, and event planning. He hired and fired staff for SBH. He reported to his father up until Sandy Sr.’s death in 1996, but he worked largely independently with little oversight.
[23] While he was managing the banquet hall, Sandy Jr. signed his own paycheques. He drew a salary biweekly. He was initially earning about $50,000 annually, the same amount he had been earning as a labourer for SS Contracting. His income increased somewhat over the years that he managed the banquet hall and catering business, up to about $60,000 annually.
[24] In 2005, Albert and Felix decided to sell the building on Britannia Road East where the banquet hall was located. The reasons for the sale are disputed but nothing turns on it. The relevant fact is that Sandy Jr. lost his job and his only source of income.
[25] Albert and Felix offered Sandy Jr. a full-time position with AFJ when they sold the banquet hall building in 2005, for the same amount of pay that he was earning at the banquet hall. His new responsibilities included driving a company truck with which he picked up and delivered empty bins to customers and retrieved full bins from customers. He transported the full bins to a transfer station, where he obtained a waybill that he submitted to Rita for processing. During the years that he worked for AFJ, Sandy Jr. hired other part-time drivers for the company, as needed, and dispatched those drivers to customer locations using a company cell phone. The part-time drivers reported directly to Sandy Jr. He handled customer requests and fielded complaints about outstanding invoices from transfer stations. He referred the latter complaints to Albert for payment.
[26] Sandy Jr. testified that he worked for AFJ up until December 2012, when his employment was wrongfully terminated without notice. The Defendants assert that he was an independent contractor and that he received notice of termination of his contract for services in June 2012. They claim that the termination was for cause. They further claim that that they generously and gratuitously paid him for several additional months, without requiring him to perform any work in exchange for that compensation.
ISSUES
[27] The following are the issues for me to decide:
i. Was the Plaintiff an employee of AFJ or an independent contractor?
ii. If he was an employee, was he wrongfully terminated from his employment or was there cause for his termination?
iii. If there was a wrongful termination,
a. Is AFJ the only liable Defendant or are any of the other corporate Defendants jointly and severally liable?
b. What, if any, damages are owed to the Plaintiff?
ANALYSIS
Was the Plaintiff an Employee or an Independent Contractor?
[28] The Plaintiff, Sandy Jr., never had a written contract with any of the Scamurra family businesses. The Defendants concede that he was an employee of SS Contracting from 1986 to 1990. They also concede that he was subsequently employed full-time by SBH from 1991 to 2005. However, they assert that he was hired by AFJ as an independent contractor in 2005 and remained an independent contractor until June 2012.
[29] Whether a worker is an employee or an independent contractor is a question of law to be determined by applying relevant indicia of employment to the facts of the case. The central question is whether the worker who performs services for an entity does so as a person in business on their own account. This question is answered by considering a multitude of factors, including the level of control the entity exercises over the worker’s activities, whether the worker is limited exclusively to the service of the entity, whether the worker provides their own equipment or has an investment or interest in the tools relating to their service, whether the worker hires their own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of their tasks.
[30] This list of factors is non-exhaustive. There is no set formula as to their application. The relative weight of each factor depends on the particular facts and circumstances of the case: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, at para. 48; Belton v. Liberty Insurance Co. of Canada (2004), 2004 CanLII 6668 (ON CA), 72 O.R. (3d) 81 (Ont. C.A.), at para. 11; Ford v. Kegan, 2014 ONSC 4989, at para. 86.
[31] Taking all the relevant factors into account, I have concluded that Sandy Jr. was employed by AFJ. I make this finding for the following reasons:
i. AFJ provided Sandy Jr. with all the equipment he required to do the work, including a company truck, cell phone, and the garbage disposal bins. He did not use any of his own tools or equipment.
ii. When Sandy Jr. hired part-time drivers, he did so on behalf of AFJ. He did not pay those workers. They reported to him, but they were compensated by AFJ. Moreover, Albert recalled that he told Sandy Jr. to “get rid of” two drivers that Sandy Jr. had hired because they were costing the company too much money. Sandy Jr. complied with his direction. Clearly, the authority to hire and fire helpers rested with AFJ, not with Sandy Jr.
iii. Sandy Jr. was not exposed to any financial risk in connection with the work he performed for AFJ. He had no opportunity to share in the company’s profits. He was paid a fixed salary biweekly, regardless of whether the disposal business was slow or booming.
iv. Although Sandy Jr. performed his duties with a significant level of independence, he ultimately reported to Albert. Both Albert and Felix testified that Albert monitored Sandy Jr.’s attendance and job performance at AFJ. Albert asserted that he watched Sandy Jr. “all the time”, even while he was busy on job sites for SS Contracting.
v. Sandy Jr. performed work in the exclusive service of AFJ for seven years. There is no evidence that he earned income from any other source during that period. Albert testified that Sandy Jr. could have worked for another company concurrently, but Felix acknowledged that Sandy Jr. likely would have been terminated if he worked for a competitor. I accept Felix’s candid testimony on this point. In any event, it is clear from all the evidence that Sandy Jr.’s consistent full-time work responsibilities for AFJ effectively prevented him from doing other work.
[32] In addition to the above factors, it is notable that Sandy Jr. received two weeks of paid vacation from AFJ every year, which is another indicium of an employment relationship.
[33] Sandy Jr. also received group insurance coverage for health and dental expenses while working for AFJ, which in some circumstances might constitute an indicium of employment. However, the evidence in this case establishes that both employees and independent contractors were eligible for health and dental benefits, so the fact of his coverage does not assist me in determining the nature of his relationship with AFJ.
[34] The Defendants point to the way that Sandy Jr. was compensated as evidence that he was an independent contractor. When he was employed by SS Contracting from 1986 to 1991, he was paid directly by SS Contracting. At that time, Sandy Sr. signed his paycheques. When he was employed by SBH from 1991 to 2005, he was paid directly by SBH. As mentioned previously, he signed his own paycheques. In contrast, when he started working for AFJ in 2005, AFJ compensated him for his services by making payments to 2077268 Ontario Inc. (“207 Ont.”), a company that invoiced AFJ for Sandy Jr.’s work. The payments were then remitted to him biweekly from 207 Ont. He was not on the AFJ company payroll. No statutory deductions were made at source by AFJ for his taxes, Employment Insurance premiums, or Canada Pension Plan contributions.
[35] This evidence pertaining to Sandy Jr.’s compensation is a relevant consideration, but it is not determinative of the nature of his working relationship with AFJ. The fact that an individual is paid through a corporation without source deductions does not preclude the existence of an employer-employee relationship, because the compensation regime may have been structured differently for taxation purposes or other reasons: Kordish v. Innotech Multimedia Corp. (1998), 46 C.C.E.L. (2d) 318 (Ont. Gen. Div.), at para. 23, aff’d 2000 CanLII 5752 (Ont. C.A.); Braiden v. La-Z-Boy Canada Limited, 2008 ONCA 464, 294 D.L.R. (4th) 172, at paras. 30-31; McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916, 315 D.L.R. (4th) 129, at para. 29; Marschall v. Marel Contractors, 2019 ONSC 4692, at paras. 16 and 20.
[36] The evidence in this case clearly establishes that AFJ paid Sandy Jr. through a corporation because he was involved in family law litigation when he began working for AFJ in 2005. Sandy Jr. testified that Albert did not want him to disclose the family companies’ financial statements to his ex-wife and wanted to “protect” the family business assets from claims by his ex-wife. Sandy Jr. said Albert expressed these concerns to him and told him that he (Albert) had discussed the issue with the family accountant, Theodore (Ted) Cowdrey, who advised that they should incorporate a company for the purpose of paying Sandy Jr.’s wages indirectly through the corporation.
[37] Albert denied that any such conversation took place. He stated that Sandy Jr. created an Ontario corporation to hide his (Sandy Jr.’s) money from his ex-wife. Albert also stated that Sandy Jr. put everything related to 207 Ont. under Albert’s name. Albert testified that he agreed to sign the corporate paperwork because he wanted to help his brother. The documentary record establishes that Albert is the sole shareholder and director of 207 Ont.
[38] Sandy Jr. denied that 207 Ont. was incorporated for the purpose of concealing his income from his ex-wife. He insisted that the incorporation was done by Albert to satisfy Albert’s desire to protect family business assets from matrimonial claims made by his ex-wife.
[39] The accountant, Ted Cowdrey, was called as a witness by the Defendants. He testified that, to his understanding, Sandy Jr.’s status with AFJ was as a subcontractor working through a numbered company. He explained that this understanding is based solely on the fact that Sandy Jr. received his pay through 207 Ont. He said he was not involved in the creation of the numbered company and did not provide any advice about it. He suspected that “Albert guided Sandy down that path to help him out.”
[40] I accept Mr. Cowdrey’s evidence unreservedly. He was a forthright witness with no interest in the outcome of this proceeding. I have no basis to doubt either his reliability or his credibility. However, his subjective understanding of Sandy Jr.’s status as a subcontractor is not relevant to the determination that I must make about whether Sandy was, in fact, an employee.
[41] On the issue of the incorporation of 207 Ont., compensating Sandy Jr. through a numbered company owned by Albert would not have insulated the Scamurra family business assets from property or equalization claims made by Sandy Jr.’s ex-wife. Nor would it have absolved Sandy Jr. of his obligation under the Family Law Rules, O. Reg. 114/99, to disclose both his ownership interest in those businesses and the value of the businesses on the date of his separation from his ex-wife. Sandy Jr.’s evidence on this point therefore makes no sense and I reject it.
[42] The only family law objective that could have been achieved by AFJ compensating Sandy Jr. through 207 Ont. (a company owned exclusively by Albert) was concealment of Sandy Jr.’s income from his ex-wife for the purpose of defeating her spousal support or child support claims. I find that this was the reason why Sandy Jr. was not on the payroll of AFJ. Regardless of whose idea it was, Sandy Jr. obviously went along with it. He therefore engaged in deceitful and condemnable conduct, but the fact remains that his method of compensation was structured for reasons unrelated to his employment status.
[43] Sandy Jr. testified that he did not prepare the invoices used to generate payment from AFJ to 207 Ont. for his work. He stated that the invoices were prepared by the company’s bookkeeper, Vivian Sgambelluri, and that he never even saw them. Ms. Sgambelluri was called as a witness by the Defendants and did not contradict this evidence. Moreover, she confirmed Sandy Jr.’s testimony that 207 Ont. was paid the same amount by AFJ every two weeks, regardless of the services and hours of work Sandy Jr. had performed. Neither Albert nor Felix contradicted this evidence.
[44] Given the totality of the circumstances, the facts that Sandy Jr. was not on the company payroll and that he was paid through a numbered company without any source deductions are not fatal to his claim that he was an employee of AFJ. To determine whether there was an employment relationship between the parties, I am required to examine their conduct towards each other and the actual nature of their relationship, rather than the relationship as structured by the parties for other purposes: Marschall, at para. 21. As noted earlier, the central question is whether Sandy Jr. was carrying on business for himself or on behalf of AFJ.
[45] It is clear from the evidence that Sandy Jr. was regularly paid (indirectly through 207 Ont.) the same amount by AFJ, regardless of how many bins he provided to and retrieved from customers during any given two-week period. He used a company vehicle and AFJ’s bins to perform the services. He used a company cell phone to communicate with customers and dispatch other drivers. He received and followed direction from Albert regarding his work activities. He was not in business for himself, independently contracting services to AFJ. Rather, he was an employee.
Was the Plaintiff Wrongfully Dismissed?
[46] The Defendants assert that Sandy Jr. was given notice of his termination on June 19, 2012, because he stopped showing up for work and did not provide an explanation. Both Albert and Felix testified that, in the months leading up to this notice, Sandy Jr. often could not be located during the day and was not responding to work-related calls and texts from customers. Albert testified that, on a few occasions, he learned (from an undisclosed source) that Sandy Jr. was out on a golf course during work hours. He also testified that Sandy Jr. was the only driver for AFJ in the spring of 2012, so the company needed him to attend work consistently to service customers.
[47] Albert and Felix testified that they had no issues with the quality of Sandy Jr.’s job performance when he was at work. Albert acknowledged that, when Sandy Jr. was working, he provided good service to customers. Albert and Felix stated that the reason they terminated his employment was because of his increasingly excessive and unexplained absenteeism.
[48] Based on Sandy Jr.’s own testimony, I find it plausible that he was distracted from his work in the months leading up to June 2012. I accept that he was likely less attentive to his AFJ duties at that time. He testified that he was investigating Albert’s and Felix’s actions with respect to the administration of their father’s estate and the management of the Scamurra siblings’ business assets. By his own evidence, this was a time-consuming endeavour. It is probable that it detracted from his work hours to some extent. I therefore accept Albert’s and Felix’s evidence that Sandy Jr. was exhibiting poor attendance in the months preceding June 2012.
[49] However, I reject the Defendants’ assertion that his absenteeism was extreme and was the reason for his dismissal. As explained below, I have concluded that Sandy Jr.’s deficient attendance record is being advanced by Albert and Felix as a pretext to characterize the wrongful termination of his employment as being a dismissal for just cause.
[50] The real reason for his dismissal is clear from the documentary record and from Albert’s and Felix’s testimony. On June 19, 2012, Sandy Jr. sent a lengthy seven-paragraph email message to Albert and Felix, accusing them of selling family-owned assets from their father’s estate without informing him or their other siblings, and without disbursing the proceeds of sale to the siblings. He also accused them of spending hundreds of thousands of dollars in family business revenues on their own personal expenses. He demanded that they meet with him to discuss these allegations. He made it clear that he had retained counsel who were ready to file an action on his behalf against them if no resolution could be reached.
[51] Albert responded to Sandy Jr.’s email ten minutes after it was sent, with a brief message that stated:
U our fired from AFJ and don’t ever step back on our property and bring ur truck back to the office
[52] Albert acknowledged that when he received Sandy Jr.’s email, he “went off the handle”. He testified, “I probably shouldn’t have done what I did right away, but it was going to happen sooner or later.” He insisted that Sandy Jr.’s termination was due to his failure to attend work regularly and was not related to the allegations of improper conduct that Sandy Jr. made against him and Felix. However, the message that he sent to Sandy Jr. on June 19, 2012, in response to Sandy Jr.’s accusatory email, and the absence of any evidence of prior disciplinary warnings with respect to Sandy Jr.’s absenteeism, belie this claim.
[53] Moreover, Albert’s own testimony makes it clear that he fired Sandy Jr. from AFJ in retaliation for what he perceived to be audacious behaviour by Sandy Jr. in questioning his management of the family businesses. Throughout his testimony, Albert demonstrated a pronounced sense of superiority and entitlement to gratitude from his siblings. He testified that his siblings have little or no skills; that he has been “looking after them for a long time” by providing them with paid work; that Rita is “just an assistant” in the office; that he looks after his siblings very well and pays them more money than they should be earning for their work; that he alone financed the capital for AFJ but he included Felix and John as shareholders and directors because they are his brothers and he was looking out for them; that the banquet hall was purchased in 1991 “to do something for Sandy”; that Sandy Jr. poorly managed the banquet hall and had to be bailed out; that he nevertheless let Sandy Jr. work for AFJ after the banquet hall building was sold because he did not want Sandy Jr. to be unemployed; that he would have given AFJ to Sandy Jr. because he wanted to take care of him, but “things didn’t work out that way”.
[54] Albert expressed the view that although his father started the family business, he has “taken it to another level” since his father’s passing. He said his siblings “wouldn’t be making the money they are making now if my dad was still in business.” He added that he could have left the family business long ago and gone out on his own, but he stayed and took care of his brothers and sister.
[55] During his cross-examination, Albert explicitly confirmed that he thought Sandy Jr. should be appreciative of everything he’d done for him. He admitted that he was “really upset” about the email that Sandy Jr. sent him on June 19, 2012. He noted that he helped Sandy Jr. when Sandy Jr. was getting divorced by mortgaging a home under his name (presumably to conceal Sandy Jr.’s assets from his ex-wife in the family law proceeding). Then he said, “And this is what I get back”, referring to Sandy Jr.’s email allegations. Plaintiff’s counsel asked him directly, “He [Sandy Jr.] shouldn’t have questioned you because you were acting in everyone’s best interest?” Albert responded, “Exactly.”
[56] During Albert’s examination in chief, he was asked about how his other siblings reacted to the accusatory email message sent by Sandy Jr. on June 19, 2012. He stated that Sandy Jr. tried to get together with Rita and John to gang up on him and Felix, but Rita and John backed out at the last minute. Notably, when he was asked whether they told him why they backed out, he replied, “They had nowhere to go.” He reiterated that he treats them well and overpays them. He noted that they have been working for him their entire lives and said that “it would have been a big mistake for them” to side with Sandy Jr. The unmistakable insinuation was that he would have dismissed them too had they supported Sandy Jr. in the accusations against him and Felix. Albert subsequently denied that he would have fired Rita or John, but his denial rang hollow given the obvious implications of what he had said.
[57] When Felix testified, he acknowledged that the June 19, 2022, email from Sandy Jr. was “a big part of the reason” why Sandy Jr. was fired from AFJ. He explained, “We were always there for him when he needed money. To blindside us like that was uncalled for.”
[58] Based on all the evidence, I conclude that Sandy Jr.’s dismissal was unrelated to his job performance or absenteeism. His employment was terminated because he failed to demonstrate the gratitude that his brother Albert felt was due to him, and because he had the temerity to question Albert’s and Felix’s management of the family businesses.
[59] I note that, even if Sandy Jr.’s increasing absenteeism had been the true reason for his termination in June 2012, the dismissal would have been a disproportionately harsh and unwarranted response in the circumstances: Dowling v. Ontario (Workplace Safety and Insurance Board) (2004), 2004 CanLII 43692 (ON CA), 246 D.L.R. (4th) 65 (Ont. C.A.), at paras. 49-50, and 71-75. He was a loyal and valuable employee who had provided faithful service for many years before beginning to display troublesome absenteeism issues. The proper management response would have been to issue warnings to him identifying the performance problems, the company’s expectations, the actions required to improve to an acceptable level, and the consequences of failing to meet expectations within a reasonable time: Mastrogiuseppe v. Bank of Nova Scotia, 2005 CanLII 46757 (Ont. S.C.), at para.81.
[60] In their Statement of Defence, the Defendants pleaded that they had many discussions with Sandy Jr. about his attendance issues in the months preceding his termination. Sandy Jr. denied this. There is no evidence to support that pleading. Albert and Felix both conceded that no disciplinary warnings were ever issued to Sandy Jr. prior to the termination of his employment. Albert contradicted himself on whether he ever discussed the issue with Sandy Jr. At one point during his testimony, he said there were no conversations about it with Sandy Jr. At another point, he testified that there “may be” documentation in the office of steps taken to try to manage Sandy Jr.’s attendance problem. No such documents were produced by the Defendants, so I infer that they do not exist.
[61] In conclusion, I find that Sandy Jr.’s employment was wrongfully terminated.
Are the Defendants Jointly and Severally Liable as a Common Employer?
[62] AFJ, as Sandy Jr.’s nominal employer, is liable for any damages caused by the wrongful termination. Sandy Jr. submits that the other Defendants are also jointly and severally liable pursuant to the doctrine of common employer. The Defendants argue that they are separate corporations and that SS Contracting, SS & Sons, and 726 Ont. had no employment relationship with Sandy Jr., except during the five-year period in the 1980s when Sandy Jr. was employed by SS Contracting as a labourer.
[63] It is well-established in the wrongful dismissal jurisprudence that an employee may simultaneously have more than one employer. If an employer is a member of an interrelated corporate group, one or more other corporations in the group may also have liability for the employment obligations. They will only have liability, however, if the evidence establishes an intention by the parties to create an employment relationship between the individual employee and the related corporations: O’Reilly v ClearMRI Solutions Ltd., 2021 ONCA 385, 460 D.L.R. (4th) 487, at para. 2.
[64] Determining that corporations are members of a commonly controlled corporate group is a necessary pre-condition to consideration of the common employer doctrine, but the doctrine does not automatically apply based only on the existence of such corporate interrelationships. As this Court noted in Mazza v. Orange Corporate Services Inc., 2015 ONSC 7785, at paras. 85-86, aff’d 2016 ONCA 753:
[M]ere allegation of corporate affiliation simpliciter is not sufficient to bring the common employer doctrine into play…
Any plaintiff invoking the common employer doctrine must be able to demonstrate on the particular facts of the case that he or she held a reasonable expectation in the circumstances that each of the alleged common employers were parties to the employment arrangement governing that particular employee at all relevant times.
[65] There are therefore two prongs to the test used to determine whether the doctrine of common employer applies. First, the Court must determine whether there is a significant degree of interrelationship and common control between the alleged common employers. Second, the Court must assess whether the employee held a reasonable expectation that the other companies were parties to his employment contract.
[66] In this case, the Defendant corporations are engaged in mutually supportive businesses. Before AFJ was sold to a third party, SS Contracting regularly referred customers to and generated work for AFJ. For a period in the 1990s, SS & Sons handled the trucking aspect of the business for SS Contracting. Even the banquet hall shared customers with the other Scamurra companies, despite operating in different sectors (i.e., construction and hospitality). For example, Ed Aquila, a longstanding friend of the Scamurra family, testified that he used the concrete and drain services of SS Contracting for his business building customs homes, used AFJ for his disposal needs, and booked yearly parties and family events at SBH.
[67] As in the case of Rowland v. VDC Manufacturing Inc., 2017 ONSC 3351, the ownership and control of the corporate Defendants are intermingled. The companies have overlapping shareholders who are all members of the Scamurra family. The companies are run by the same directors, and operate out of the same corporate address, namely a building owned by 726 Ont. These circumstances existed throughout Sandy Jr.’s employment with the family businesses, both prior to his founding father’s death and after his father’s passing.
[68] Furthermore, the four companies’ administrative and bookkeeping operations have always been shared. Vivian Sgambelluri, the bookkeeper, is nominally employed and paid by SS Contracting, but she provides services to the other corporations, including SS & Sons (when it was operational), 726 Ont. (as needed), and AFJ (prior to its sale). Similarly, Rita performed administrative duties for AFJ (e.g., processing waybills), while being paid as an employee of SS Contracting. In addition, Felix testified that he engaged in sales for AFJ while working as an on-site supervisor and equipment operator for SS Contracting. Evidently, there was fungibility in the companies’ workforces.
[69] Finally, the evidence establishes that funds were regularly transferred between the corporations to cover financial losses. Albert and Felix testified that, when the banquet hall was operational, it was not generating sufficient revenue to cover its bills, so SS Contracting frequently paid the outstanding expenses. Albert testified that SS Contracting also paid expenses related to the building that housed the banquet hall, which was owned by either 726 Ont. or SS & Sons (there is conflicting evidence on the issue of ownership). The Defendants’ accountant, Ted Cowdrey, recalled that SBH had a large receivable owing to 726 Ont. when he started working for the Defendants in or around 2005. Albert gave uncontested evidence that the debt was paid by SS Contracting.
[70] Similarly, Albert and Felix testified that, whenever AFJ accumulated debt, SS Contracting covered the overdraft. Mr. Cowdrey confirmed that management fees were used as an accounting tool to transfer losses from one company to another to mitigate tax liability. He explained that losses and profits were blended to make the separate corporations operate as though they were one company.
[71] Based on all the above, I conclude that the Defendants are intermingled corporations that were commonly controlled, initially by Sandy Sr. and subsequently by Albert and Felix. The Defendants cannot, however, be held to be a common employer simply because of their close affiliation with AFJ, which had a direct employment relationship with Sandy Jr. As noted above, there is a second prong to the test to determine whether companies are common employers.
[72] In this second prong, a corporation that is closely related to a nominal employer will be found to be a common employer only where it is shown, on the evidence, that there was an intention to create an employer/employee relationship between the worker and the related corporation: Gray v. Standard Trustco Ltd., 1994 CanLII 7472 (ON SC), 8 C.C.E.L. (2d) 46 (Ont. Gen. Div.), at para. 3; Downtown Eatery (1993) Ltd v. Ontario (2001), 2001 CanLII 8538 (ON CA), 54 OR (3d) 161 (Ont. C.A.), at paras. 31 and 40; Rowland, at paras. 12-13. The issue is one of contractual formation, namely, did the employee and the corporation alleged to be a common employer intend to contract about employment with each other?
[73] In determining whether the required intention to contract was present, the parties’ subjective thoughts are irrelevant. The common law’s approach to contractual formation is objective; intention to contract can be inferred from conduct. What is relevant is how each party’s conduct would appear to a reasonable person in the position of the other party: O’Reilly, at paras. 51-52. In other words, did the parties objectively act in a way that showed they intended to be parties to an employment contract? If so, then the employee can be found to have a reasonable expectation that the other party is bound by his employment contract.
[74] The court must consider all relevant factors, including the terms of any written contract of employment, whether any person on behalf of the company acknowledged the individual as an employee, who compensated the employee, and for whom the employee performed services: Shavit v. Top Aces Holdings Inc., 2018 ONSC 5889, at paras. 4-5. Of central importance is who effectively controlled the employee’s work-related activities: Rowland, at para. 13.
[75] In this case, Sandy Jr. had no written contract of employment. His salary was initially paid by SS Contracting, then by SBH, and finally by AFJ (via a numbered corporation) in the final seven years of his employment. The source of his paycheque corresponded to the entity for whom he was providing the bulk of his services. However, at various times he was expected to and did work for related family companies without extra compensation. In particular, he consistently performed snow-plough duties for SS Contracting in winters, including when he was managing the banquet hall and when he was working for AFJ. He received no additional compensation from any of the Scamurra companies for that work.
[76] Furthermore, throughout the entire duration of Sandy Jr.’s working life, he was provided with health and dental benefits coverage by SS Contracting. For a period, the benefits were insured by Great West Life (“GWL”) under a group policy owned by SS Contracting. The documentary record establishes that Sandy Jr. was covered by the GWL policy while he was nominally employed by AFJ. At other points in time, SS Contracting paid his employee benefits claims directly, including claims he submitted while he was managing the banquet hall.
[77] As part of his compensation package, Sandy Jr. was also provided with a company vehicle. The evidence establishes that SS Contracting paid for the auto lease and insurance, including during periods when Sandy Jr. was working for SBH and AFJ. In addition, Sandy Jr. testified that, during his employment with AFJ, when he refuelled the company truck, he sometimes paid out of pocket (because the company account was in arrears) and submitted the receipt to Ms. Sgambelluri for reimbursement. He gave uncontested evidence that he would be reimbursed by either AFJ or Scamurra Contracting, even though he was working for AFJ at the time
[78] With respect to the question of which Defendant controlled Sandy Jr.’s work-related activities, the evidence establishes that he worked largely independently, both at the banquet hall and at AFJ. However, his father (initially) and his brothers Albert and Felix ultimately oversaw and monitored his job attendance and job performance. Those individuals controlled all of the Scamurra companies. It is therefore not possible to conclude that only one or the other of the corporate Defendants had control over Sandy Jr.’s activities.
[79] Notably, Sandy Jr.’s terms and conditions of employment did not change when he moved from SS Contracting to SBH in 1991. Although he was given different duties and enhanced responsibility at that time (to manage the banquet hall), he did not receive a corresponding increase in salary. Similarly, when he later moved from SBH to AFJ in 2005, there was no change in his compensation package. His salary remained constant. His health and dental benefits coverage and other employment benefits (e.g., vacation, company vehicle) also remained constant. He was effectively transferred laterally between the family businesses.
[80] Taking all of these circumstances into account, I find that all four Defendants objectively acted in a manner that showed they intended to be parties to Sandy Jr.’s employment contract throughout the duration of his working years. I recognize that not all of the Defendants existed at the time of his initial hiring by SS Contracting in 1986, but as each company was created and the corporate network of family businesses expanded, each acted in a manner that would lead a reasonable observer to infer that they intended to be parties to Sandy Jr.’s employment contract. Moreover, it was reasonable in the circumstances for Sandy Jr. to expect that all the Defendants were obligated to respect his rights as an employee.
[81] I conclude that the common employer doctrine applies in the circumstances. The Defendants are jointly and severally liable for any damages owing to Sandy Jr., flowing from the wrongful termination of his employment.
Are Damages Owed to the Plaintiff?
[82] The common law implies a term in contracts of indefinite employment requiring the employer to provide reasonable notice upon termination of an employee without just cause: Manthadi v. ASCO Manufacturing, 2020 ONCA 485, at para. 42. The primary purpose of the notice period is to provide the employee with an opportunity to seek alternative employment. When reasonable notice is not provided, the employee is entitled to damages for breach of contract, to compensate for the economic consequences that flow from the lost opportunity to secure another job. The damages represent the wages and employment benefits that the employee would have earned had they worked during the notice period, less any amounts credited for mitigation.
[83] I must therefore answer the following three questions to determine whether Sandy Jr. is entitled to damages:
i. What notice period would have been reasonable in the circumstances?
ii. What, if any, notice did the Plaintiff receive?
iii. Did the Plaintiff fail to mitigate his damages?
What notice period would have been reasonable?
[84] There is no precise method or formula for determining the length of a period of reasonable notice. It must be done on a case-by-case basis, having regard to the character of the employment, the length of service of the employee, the age, experience, training and qualifications of the employee, and the availability of similar or comparable employment: Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145; Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 128 D.L.R. (4th) 147 (Ont. C.A.), at p. 176; Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at paras. 28-32. None of these factors is to be overemphasized or given disproportionate weight in determining the length of reasonable notice: Singer v. Nordstrong Equipment Limited, 2018 ONCA 364, at para. 6; Arnone v. Best Theratronics Ltd., 2015 ONCA 63, at para. 11.
[85] There is no upper limit or fixed “cap” on what constitutes reasonable notice in any given case, but only exceptional circumstances will support a notice period in excess of 24 months: Keenan v. Canac Kitchens Ltd., 2016 ONCA 79, at para. 30; Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, 435 D.L.R. (4th) 573, at paras. 31-33, leave to appeal refused, 2020 CanLII 25174 (SCC); Celestini v. Shoplogix Inc., 2021 ONSC 3539, at para. 60.
[86] Sandy Jr. submits that he was entitled to 24 months’ notice. He relies on several authorities in the wrongful dismissal jurisprudence, particularly Mastrogiuseppe, at paras. 88-92. In that case, the Court found that a notice period of 18 to 24 months was reasonable in a case involving a 47-year-old branch manager who had worked 28 years for the same bank. I agree with Plaintiff’s counsel that there are notable parallels between the facts of this case and those of Mastrogiuseppe, and that the range of 18 to 24 months’ notice is appropriate in this case as well.
[87] Sandy Jr. occupied a supervisory position within AFJ, with significant responsibility. He was the direct contact for customers. Other drivers reported to him. However, he did not occupy a senior management level position. He did not, for example, make decisions about hiring and firing other employees. Those decisions were within Albert’s and Felix’s exclusive authority. The character of Sandy Jr.’s employment therefore militates in favour of a mid-length notice period: Love v. Acuity Investment Management Inc., 2011 ONCA 130, at paras. 20-22, leave to appeal refused, [2011] S.C.C.A. No. 170.
[88] Other relevant factors militate in favour of a lengthy notice period. Sandy Jr.’s labour-market qualifications were all acquired on-the-job. His educational background is unrelated to his fields of work. He graduated from Humber College in 1986 with a diploma in law and security. He initially hoped to become a police officer but, at the request of his father, began instead to work for Scamurra Contracting as a general labourer. About five years later, again at the request of his father, he became the general manager of the Scamurra family’s new business venture, the banquet hall. When the banquet hall ceased operations in 2005, Sandy Jr. transferred over to the most recent Scamurra family venture, a garbage disposal company. In short, he dedicated his entire adult professional life (26 years) to serving the needs of his family’s businesses.
[89] Little evidence was adduced at trial about the availability of similar employment when he was dismissed in 2012. However, it is reasonable to infer that it would have been difficult for Sandy Jr. to secure comparable employment given his longstanding exclusive work for the family businesses and his inability to obtain employment references from his brothers. The loss of his employment came at a vulnerable point in his career. He found himself out of work and looking for a job for the first time at age 47, having only ever worked for his family, and with no experience in the field in which he obtained his college diploma.
[90] Considering all the above relevant factors, I conclude that a notice period of 22 months would have been reasonable in the circumstances.
What amount of notice did the Plaintiff actually receive?
[91] Sandy Jr. testified that on July 20, 2012, about a month after his termination via email on June 19, 2012, he met with Albert and was reinstated to his position at AFJ. He recalled that the company keys and cell phone were returned to him. He said he resumed his duties, working full time from his truck as he had done prior to June 19, 2012. He claimed that he continued to work for the company until the end of December 2012, at which point his brothers stopped paying his salary without explanation. He argues that the reason for his ultimate termination was Albert’s lingering resentment about being challenged regarding the administration of their father’s estate.
[92] Sandy Jr. takes the position that his termination was effective December 31, 2012 and was without notice. The Defendants take the position that his termination was effective June 19, 2012, and was with notice.
[93] Albert and Felix testified that, a couple weeks after the heated email exchange in June 2012, they agreed to restore Sandy Jr.’s salary for a temporary period, while they negotiated a SPA to buy out Sandy’s interest in the family businesses, and while Sandy looked for other employment. The evidence in the record establishes, on a balance of probabilities, that Sandy Jr.’s income was reinstated retroactively, such that he did not suffer any wage loss that summer. Both Albert and Felix denied that Sandy performed any work for AFJ after June 19, 2012. Albert recalled that some AFJ customers continued to contact Sandy Jr. because they were unaware that he was no longer working for the company, and Sandy Jr. simply referred those customers to him.
[94] Each of the parties was adamant about their conflicting evidence on this issue. However, I am not required to resolve the factual dispute. Nothing turns on whether Sandy Jr. was performing work throughout this period because he admitted, during his cross-examination, that he was aware of the impending termination of his employment. He testified that, after the email exchange in June 2012 and the subsequent meeting with Albert in July 2012, he was anticipating that he would cease working for the family business at the end of December 2012. He said it was understood that, at the end of that year, he would no longer be a shareholder and would no longer be employed there.
[95] Felix was uncertain about precisely when they stopped paying Sandy Jr.’s salary, but he thought it was around the time that Sandy Jr. decided to open a café/restaurant. Albert testified that AFJ continued to pay Sandy Jr.’s salary up until the SPA was executed. I reject Albert’s evidence as improbable because the SPA was not finalized until September 2013 and Sandy Jr. opened a café/restaurant and catering business in February 2013. It is simply not believable that Albert and Felix would have continued to pay Sandy Jr. once his new business venture was operational. Moreover, the Defendants could easily have produced records to show the ongoing salary payments and they did not do so. I therefore infer that the payments ceased in December 2012, as Sandy Jr. contends.
[96] I conclude that Sandy Jr.’s employment was terminated without cause effective December 31, 2012, but he received notice of the termination on June 19, 2012. AFJ paid his salary and continued to provide his employment benefits throughout the 6.5 month notice period (regardless of whether he worked). He is therefore entitled to damages for the remainder of the reasonable notice period (i.e., 15.5 months), subject to any mitigation.
Did the Plaintiff mitigate his losses?
[97] Absent a pre-determined fixed notice period in an employment contract, employees are legally obligated to mitigate the damages that flow from a wrongful dismissal by seeking an alternative source of income. Where mitigation is in dispute, the employer has the burden of proving that the employee failed to mitigate their damages.
[98] To satisfy this onus, the employer must establish that the employee failed to take reasonable steps and that, had their job search been active, they would have been expected to have secured a comparable position suited to their abilities: Link v. Venture Steel Inc. (2008), 2008 CanLII 63189 (ON SC), 70 C.C.E.L. (3d) 114 (Ont. S.C.), at paras. 45-46. Even if the employer shows that the employee’s mitigation efforts were modest at best, unless the employer establishes that the employee could have found similar employment with comparable remuneration by having acted with greater diligence, the employer will not have discharged its burden: Rothenberg v. Rogers Media Inc., 2020 ONSC 5853, at para. 51.
[99] In this case, Sandy Jr. was receiving a gross biweekly salary of $2,825 ($73,450 annually) from AFJ at the time of his termination. In an effort to replace that income, he purchased a restaurant in early 2013 and opened a café and catering business in February 2013. The business struggled financially and never grossed enough revenue to generate a significant profit. After paying his staff and overhead expenses, Sandy Jr. was unable to draw any income for himself. For two years, he lived off his savings. He ultimately sold the restaurant in February 2015 and essentially recouped his original investment. He then got a job with an insulation company, earning about $1,000 gross weekly. He eventually took over the insulation business, where he continues to work, currently earning approximately $52,000 gross annually.
[100] The Defendants take the position that Sandy Jr. failed in his obligation to mitigate his income loss. Albert testified that Sandy Jr. chose an industrial, low-traffic location for the café/restaurant and unreasonably limited the business’s hours of operation. The Defendants argue that, had he taken more time and care in selecting the location for the restaurant, and had he offered longer hours of operation, the profitability of the business may have been drastically improved. The Defendants also submit that Sandy Jr. could have found another job driving a truck, rather than going into the restaurant business, which would have been more closely related to his most recent work experience. They further submit that he also could have searched for the type of paid work that he is now doing, namely insulation installation, which would have at least generated a modest weekly income. Instead, he took a big risk with a restaurant business that produced no income for two years. The Defendants argue that he therefore failed to take reasonable steps to mitigate his losses.
Apart from Albert’s two criticisms of Sandy Jr.’s efforts to start his own business (i.e., the location and hours of operation of the restaurant), there is no evidence to support the Defendants’ assertion that Sandy Jr. acted unreasonably, or that he would likely have been able to preserve his level income had he acted differently. Sandy Jr. acknowledged that the restaurant was situated in an industrial area but explained that it attracted a lunch crowd, and occasional breakfast crowd. He noted that it was within one kilometre of a residential neighbourhood. He confirmed that the restaurant was only open from 9 a.m. to 5 p.m. on weekdays but explained that the business offered catering services in the evenings and on weekends.
[101] Sandy Jr.’s decision to start his own restaurant and catering business was reasonable given his 15 years of experience managing his family’s banquet hall and catering business. He was intimately familiar with the food service industry. It was therefore a sensible sector in which to pursue his livelihood. Given his knowledge and extensive experience in the industry, it was reasonable for him to believe he could manage his own restaurant. It was also reasonable for him to limit his overhead costs by restricting the hours of operation of the dine-in café, while offering catering services after-hours and on weekends.
[102] The fact that his restaurant did not succeed, and that he had to abandon the project within two years, does not mean it was an unreasonable attempt at mitigation. An employee who has been wrongfully terminated is entitled to consider their own long-term interests when seeking another way of earning a living. They are not required to neglect long-term goals and focus exclusively on their short-term obligation to mitigate damages for the sake of their former employer: Peet v. Babcock & Wilcox Industries Ltd. (2001), 2001 CanLII 24077 (ON CA), 53 O.R. (3d) 321 (C.A.), at para. 8.
[103] The question is whether the employee has stood idly by or has made reasonable efforts without success to secure other employment or income: Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324, at p. 331. A terminated employee does not fail to mitigate merely because he chooses to take some career risks that might not minimize the compensation that his former employer will owe to him: Peet, at para. 8; Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402, 135 O.R. (3d) 561, at para. 94.
[104] There is no evidence in this case that Sandy Jr. would have obtained comparable employment income had he undertaken a different job search or acted differently in the operation of his restaurant business. The Defendants have not met their onus to prove a failure to mitigate.
Calculation of damages
[105] When a wrongfully dismissed employee is terminated without adequate notice, they are entitled to damages that place them in the same financial position they would have been in had they been given the opportunity to continue working throughout a reasonable notice period: Sylvester v. British Columbia, 1997 CanLII 353 (SCC), [1997] 2 S.C.R. 315, at para. 1. In this case, Sandy Jr. is entitled to damages as compensation for the salary and employment benefits that he would have received had he been given 22 months’ notice, less the salary and benefits he received during the actual shorter period of 6.5 months’ notice: Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, 449 D.L.R. (4th) 583, at para. 53; Halupa v. Sagemedica Inc., 2019 ONSC 7411, at para. 23; Celestini, at para. 69. In other words, he is entitled to damages for 15.5 months of lost remuneration.
[106] At the time of his termination, he was earning a gross salary of $2,825 biweekly and was benefitting from the use of a company vehicle and cell phone, as well as health and dental benefits coverage. The evidence establishes that the value of the company vehicle was approximately $1,000 per month, inclusive of lease payments, fuel, maintenance, and insurance. The car payments were an integral part of his remuneration and must therefore be included in the calculation of his compensation. No evidence was adduced on the value of the health and dental benefits coverage. I adopt the approach commonly used by this court and estimate the value of those benefits to be 10 percent of his base salary: Halupa, at para. 23; Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343, at para. 27; Camaganacan v. St. Joseph’s Printing Ltd., 2010 ONSC 5184, at para. 23.
[107] I therefore calculate the total damages owing as follows:
Notice Period
Salary
Benefits
Vehicle expenses
First 12 months
$73,450[^1]
$7,345[^2]
$12,000[^3]
Remaining 3.5 months
$21,423[^4]
$2,142[^5]
$3,500[^6]
Subtotals:
$94,873
$9,487
$15,500
TOTAL:
$119,860[^7]
CONCLUSION
[108] The Defendants wrongfully terminated the Plaintiff’s employment without cause and without adequate notice. Only 6.5 months’ notice was provided in circumstances where 22 months’ notice was reasonably required. The Defendants are common employers and are jointly and severally liable for damages owed to the Plaintiff arising from this breach of contract. The damages total $119,860, plus pre-judgment interest calculated in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43. This amount shall be paid by the Defendants to the Plaintiff within 30 days. Any outstanding amount shall be subject to post-judgment interest thereafter, in accordance with the Courts of Justice Act.
[109] I remain seized with respect to costs of this action.
NOTES:
The parties are encouraged to negotiate a resolution on costs. If they are unable to agree, the Plaintiff may deliver written costs submissions within 20 days of today’s date, and the Defendants may deliver responding submissions within a further 10 days. Submissions must not exceed 3 pages, double spaced, excluding any costs outline or offers to settle. Reply submissions shall not be delivered unless requested by me. Extensions of time shall not be granted without leave. If no written submissions are received within 30 days of today’s date, I will deem the issue of costs to be resolved and will make no order as to costs.
If either party believes that I have made a mathematical error in my calculation of damages, they should bring the issue to my attention within 10 days of today’s date, by setting out the perceived error in writing, with a copy to the opposing party, so that the issue may be addressed via teleconference.
Petersen J.
Released: July 18, 2022
COURT FILE NO.: CV-14-2608-00
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SANDY SCAMURRA
Plaintiff
- and -
SANDY SCAMURRA CONTRACTING LTD., SANDY SCAMURRA & SONS LTD., 726127 ONTARIO LTD. and AFJ DISPOSAL INC.
Defendants
REASONS FOR JUDGMENT
Petersen J.
Released: July 18, 2022
[^1]: $2,825 x 26 biweekly payments = $73,450
[^2]: $73,450 x 10% = $7,345
[^3]: $1,000 x 12 months = $12,000
[^4]: $73,450 x 3.5/12 = $21,423
[^5]: $7,345 x 3.5/12 = $2,142
[^6]: $1,000 x 3.5 months = $3,500
[^7]: $94,873 + $9,487 + $15,500 = $119,860