Court File and Parties

Court File No.: CV-19-006311169-0000 Date: 20220804 Superior Court of Justice - Ontario

Re: Julian Ofori, Plaintiff And: BCG Logistics (2000) Ltd., Defendant

Before: R.F. Goldstein J.

Counsel: Alia S. Besharat, for the Plaintiff

Heard: In Writing

Endorsement

[1] The Plaintiff seeks damages by way of a default judgment. The Defendant was noted in default and did not defend the action. I agree with the Plaintiff that default judgment is available in an action for wrongful dismissal: Abrahim v. Sliwin, 2012 ONSC 6295; Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520.

[2] The principal of the Defendant has indicated that the company is no longer operating and that there are no funds available.

[3] The Plaintiff worked for the Defendant company for 11 years, from May 2008 until he was laid off on or about September 30, 2019. He started as a Shipping/Receiving Clerk and worked his way up to Warehouse Manager. He earned an annual salary of $60,000 per year plus $1,300 bonus and benefits when he was laid off.

[4] In his statement of claim the Plaintiff seeks damages for wrongful dismissal of $75,000 in lieu of 15 months reasonable notice of termination, as well as $2,600 for his bonus entitlement from 2019 as well as throughout the notice period. The Plaintiff also sought punitive, aggravated, Bhasin, and/or moral damages in the amount of $25,000 and damages in the amount of $25,000 for violations of the Ontario Human Rights Code. He has abandoned his claim for the latter two heads of damages and now seeks only damages for wrongful dismissal and his bonus entitlement.

[5] The principle of constructive dismissal operates. The Plaintiff has established that he is entitled to damages: Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831. An employee who is dismissed without proper notice is entitled to the amount he or she would have earned during the notice period: Sylvester v. British Columbia, [1997] 2 S.C.R. 316 at para. 9.

[6] There is no fixed formula or rigid rule in determining the appropriate notice period. The employee’s length of service is important but not determinative. There is no rule that clerical workers (and by extension I would find warehouse workers) are entitled to less notice than senior managers or specialized employees. As well, there is no upper limit on damages: Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321, [1999] O.J. No. 5 (C.A.). In that case, the employee had worked for the employer for 11 years without problems. He was laid off following a minor dispute. The trial judge awarded him damages equivalent to 13 months. Laskin J.A. identified several of the factors to be taken into account when assessing damages. They include:

• The character of the employment;

• The length of service;

• The age of the employee;

• The availability of similar employment having regard to the experience, training, and qualifications of the employee.

[7] Laskin J.A. found that 13 months was at the upper end of the range but still upheld the award.

[8] When I apply the factors, I note that the Plaintiff has demonstrated real ability by steadily rising through the ranks to achieve a managerial position. I note as well that he is a long-term employee, having worked for the Defendant for 11 years. He is currently 35 years old. Regrettably, the Plaintiff has not been able to find a comparable position. I note, however, that he was laid off shortly before the world-wide Covid-19 pandemic had devastating economic consequences. I would think that as the economy recovers, his prospects will improve. That said, it may be some time before that happens.

[9] Accordingly, I find that 13 months is the appropriate notice period. I agree that the Plaintiff’s expectation of a bonus of $1,249.95 (as requested) is reasonable based on his past history. Damages will be calculated at 13 months or $65,000.00 plus $1,249.95 less mitigation for the period.

[10] I ask counsel to re-calculate the mitigation amount and convey that to me for the final order.

[11] Costs are awarded as shown above. I am aware that the defendant did not participate in the case conference and has otherwise not participated in the litigation, but I do not find that is an adequate basis upon which to award substantial indemnity costs.

R.F. Goldstein J.

Date: July 27, 2022