OVERVIEW

[1] Cassandra Amerato began working at TST-CF Solutions LP (TST) in 2005. She states that on January 22, 2021 her employment was terminated. At the time of the termination she was the Customer Service Supervisor in Eastern Canada and was earning a salary of $58,730.02 per year, plus benefits. When terminated she was receiving long-term disability (LTD) benefits because of a concussion sustained in June 2020.

[2] TST states that as a result of a corporate merger in May 2020 as well as the economic downturn caused by the COVID-19 pandemic, Ms. Amerato’s position had been eliminated. On January 22, 2021, TST orally advised Ms. Amerato that her employment was terminated. On the same day, TST provided a letter to Ms. Amerato confirming the earlier conversation and advising that the effective date of termination was February 1, 2021. She was offered a termination package of 17 weeks, less applicable deductions. She was told that her short and long-term disability insurance will expire immediately. On the same day the Defendant delivered a second letter to Ms. Amerato, in which she was offered a job change to Customer Service Representative, at a salary of $48,000 per year.

[3] TST argues that Ms. Amerato was provided with two options; 1) of being terminated and 2) a job change to a comparable position albeit at a lower salary. TST states that Ms. Amerato accepted the change in position, and therefore was not terminated from her employment. She began working in the new position on March 15, 2021. She continues to be employed with TST. She continues to collect LTD benefits and receives the same amount in income and benefits she received before her job change. TST takes the position that Ms. Amerato has not suffered a loss and is therefore not entitled to any damages for wrongful dismissal.

[4] Ms. Amerato argues that she was terminated from her employment. The termination letter dated January 22, 2021 is clear and unequivocal. She did not accept the demotion to Customer Service Representative however, she agreed to mitigate her damages by working at the new position without prejudice to her claim for damages for wrongful dismissal. She agrees TST is entitled to a credit for the income she earns during the notice period, however it is her position that TST is not entitled to a credit for the LTD benefits.

[5] For the reasons set out below, I find that Ms. Amerato was terminated from her employment on January 22, 2021. The termination was without cause. I award damages of 18 months’ salary less any amounts she receives in employment income from TST during the notice period. I find that TST is not entitled to a credit for the LTD benefits Ms. Amerato receives during the notice period.

BACKGROUND FACTS

[6] On March 21, 2005, Ms. Amerato was hired as a Customer Service Representative for TST. On May 23, 2017, she was promoted to Customer Service Supervisor in Eastern Canada.

[7] On May 3, 2020, TST acquired the business of Canadian Freightways. The two companies merged and continued operations under the business name TST-CF Express. At the time of the merger, Ms. Amerato asked her employer if her job was safe. She states that she was told her job was unaffected by the merger. The Defendant states that no such assurances were given.

[8] On June 16, 2020, Ms. Amerato went on short-term disability after suffering a concussion. She was unable to return to work on a full-time basis and in December 2020 she transitioned to long-term disability. At that time, she began receiving benefits in the amount of 60% of her salary of $58,904.95. Her monthly benefit was $2,946.00.

[9] TST takes the position that because of the merger as well as the challenges related to the COVID-19 pandemic, the company underwent significant changes. One of the changes was the elimination of one of the two existing Customer Service Supervisor positions in Eastern Canada.

[10] On January 22, 2021, Ms. Amerato met with Terry Sanders of TST. He stated that her employment was terminated. Later that day, TST sent a letter to Ms. Amerato confirming the earlier discussion. The letter provides as follows:

This letter is to confirm our discussion today, during which you were advised that your employment with TST Solutions LP (TST-CF Express Division), (the “Company”) is terminated effective February 1, 2021.

[11] In the letter, TST advises Ms. Amerato that her short- and long-term disability coverage will terminate immediately.

[12] At the same time, TST delivered a second letter to Ms. Amerato in which she was offered a job change to Senior Customer Service Representative at a reduced salary. The letter provides as follows:

We are pleased to offer you a job change from your current position of Customer Service Supervisor to the full-time employment position as a Senior Customer Service Representative with TST-CF Express as a result of organizational restructuring [,,,,]

[13] By letter dated January 26, 2021, the date of termination was amended to March 6, 2021.

[14] On March 4, 2021, Ms. Amerato’s lawyer wrote to TST and took the position that Ms. Amerato had been wrongfully terminated. She intended to return company property and to retrieve her personal items. In response, counsel for TST wrote that Ms. Amerato is free to commence an action seeking common law damages, but if she refuses to accept the role of Senior Customer Service Representative, TST will take the position that she failed to mitigate. On March 9, 2021, TST sent an e-mail to Ms. Amerato’s team advising that she was no longer with the company.

[15] On March 12, 2021, Ms. Amerato’s lawyer wrote to TST and stated that Ms. Amerato agrees to mitigate her damages by working at the new position. He wrote that although Ms. Amerato will work in the new position, she does not accept that the new position or the reduced salary is an appropriate position or an appropriate salary to compensate for her loss.

[16] Ms. Amerato began working her new job as Customer Service Representative on March 15, 2021. Ms. Amerato continues to work at TST. She presently works four hours a day, three days per week. She earns $276.92 per week. She receives a top-up from her LTD insurer to ensure her total monthly income is $2,946, which is 60% of her pre-disability income of $58,904.95. This is the amount she was receiving at the time of the termination of her employment.

THE ISSUES

[17] I will address the following issues:

(a) Is this an appropriate case for summary judgment?

(b) Was the Plaintiff terminated from her employment?

(d) Is the Plaintiff entitled to bad faith damages?

(e) Is the Plaintiff entitled to discrimination damages?

(f) Do the disability benefits reduce the calculation of damages? and

(g) Did the Plaintiff mitigate her damages?

ANALYSIS

Is this an appropriate case for summary judgment?

[18] A court may grant summary judgment if satisfied, on the written record that there is no genuine issue requiring a trial: R. 20.04 of the Rules of Civil Procedure. A trial will not be required if the summary judgment process:

(a) allows the judge to make the necessary findings of facts, including any necessary findings of credibility;

(b) allows the judge to apply the law to those facts; and,

(c) is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak v. Mauldin, [2014] SCC 7, at paras. 49, 50.

[19] In Hryniak, the court set out a two-part test for summary judgment. First, the motion judge must determine whether there is a genuine issue requiring a trial based on the evidence contained in the motion record. The second step is activated when the judge finds that there is a genuine issue requiring a trial. The judge must then determine whether the issues can be decided using the powers set out in Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure, to weigh the evidence, evaluate credibility and draw inferences from the evidence: Hryniak, at paras. 68 and 82.

[20] Wrongful dismissal actions with limited credibility issues and few disputed facts are particularly well suited for summary judgment motions. As noted by Justice Dunphy:

There is a general willingness in our courts to entertain summary judgment motions or even short, hybrid trials in the case of wrongful dismissal with a view to ensuring that the procedures deployed to resolve a dispute are tailored in as pragmatic and proportionate a fashion as possible ...” Iriotakis v. Peninsula employment Services Ltd. [2021] O.J. No. 635, at para 3.

[21] TST argues that there are material facts in dispute and as a result this matter is not appropriate for summary judgment. I disagree. The issues to be determined on this motion are whether Ms. Amerato was terminated from her employment and if so, the damages that flow from the dismissal. Many of the facts are uncontested. There are no significant issues of credibility. I am satisfied on the evidence before me, that I am able to reach a fair and just determination on the merits and that this is an appropriate case for summary judgment.

Was the Plaintiff terminated from her employment?

[22] On January 22, 2021, TST delivered a termination letter to Ms. Amerato. The letter is unequivocal. The letter confirms an earlier discussion during which Ms. Amerato was advised that her employment is terminated effective February 1, 2021. Ms. Amerato was offered a termination allowance in the amount of $19,257.39 representing 17 weeks. The letter also provides that Ms. Amerato’s group insurance coverages, including short-term and long-term disability, out of country provision and Global medical assistance, will expire immediately.

[23] At the same time as the termination letter was sent, TST sent a second letter, in which Ms. Amerato was offered a job change to Customer Service Representative at a reduced salary. The parties agree that this is a demotion from her supervisor role. The new position paid approximately 20% less in salary. The termination letter does not refer to the letter offering the new position. The letter offering the new position does not refer to the termination letter. There is no evidence from the Defendant as to why the two letters were sent to Ms. Amerato at the same time.

[24] TST argues that Ms. Amerato was presented with two options: termination or job change. She accepted the job change. TST states that the two options presented to Ms. Amerato were “clear alternatives” and not meant to be concurrent offers. TST also argues that if there was a termination, the termination was conditional on Ms. Amerato not accepting the job change and once she agreed to the new position, the termination was canceled.

[25] The letters do not state that the options were mutually exclusive or that if Ms. Amerato accepts the new position, the termination is cancelled. It is my view that the intention of the two letters was clarified by TST’s counsel in his letter dated March 4, 2021. He states that TST intends to rely on Ms. Amerato’s refusal to accept the alternative and available job as a failure to mitigate. By letter dated March 12, 2021, counsel for Ms. Amerato states that she is not waiving her legal rights but will work in the new position to mitigate her damages. The correspondence is consistent with the termination of Ms. Amerato’s employment and the offer of a new position to allow her to mitigate her damages for wrongful dismissal.

[26] I am satisfied that Ms. Amerato was terminated from her employment. The wording of the termination letter is clear. The letter states that Ms. Amerato is terminated from her employment effective February 1, 2021. The fact that Ms. Amerato agreed to work in the new position to mitigate her damages does not change the fact that her employment was terminated. If I had not found that Ms. Amerato had been terminated from her employment, I would have found she had been constructively dismissed. There is no dispute that the new position is a demotion from her previous position as a supervisor and pays a lower salary.

What is the reasonable notice period?

[27] Ms. Amerato argues that she is entitled to receive 17 to 20 months’ notice on termination. TST argues that if this court finds that Ms. Amerato was terminated from her employment, the appropriate notice period is 10-14 months.

[28] The factors to be considered in determining the reasonable notice period in cases of wrongful dismissal are set out in Bardal v. The Globe and Mail, 1960 CanLII 294 (ONSC):

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment having regard to the experience, training and qualifications of the servant: at para. 21.

[29] The Bardal factors are not exhaustive. Economic factors such as a downturn in the economy may affect the employee’s ability to obtain another position and may justify a longer notice period. As a general rule, a longer notice period is justified in the case of older, long term employees: Paquette v. TeraGo Networks Inc. [2015] O.J. No. 3435, 2015 ONSC 4189, at paras. 24-31.

[30] Here, Ms. Amerato was employed at TST for over 16 years. Her position at the time of her termination was Customer Service Supervisor. She was 52 years of age and disabled. The availability of similar employment was limited because of Ms. Amerato’s age and disability. I also take judicial notice of the fact that her ability to obtain alternative employment may have been adversely affected by the restrictions in the economy imposed as a result of the COVID-19 pandemic: Lamontagne v. J.L. Richards & Associates, 2021 OJ No. 1788, 2021 ONSC 2133, at para. 64.

[31] I am satisfied, having regard to the Bardal factors, that a notice period of 18 months is warranted in the circumstances.

[32] Ms. Amerato also seeks an award of damages to compensate her for the benefit coverage she would have received if her employment was not terminated. She takes the position that the value of the benefits is approximately 10% of her gross salary. Ms. Amerato concedes that there was no lapse or change in her benefits coverage after she accepted the Customer Service Representative role. Ms. Amerato also continues to be entitled to four weeks’ vacation. I am of the view that in the circumstances of this case, Ms. Amerato is not entitled to an award of damages in respect of her benefits or vacation.

[33] TST argues that it should be credited in respect of working notice. Ms. Amerato was given notice by letter dated January 22, 2021and continued to work until her job change on March 15, 2021. She earned $7,929.51 over this period of time. TST also seeks a credit for the income she earned in the new position during the notice period.

Is the Plaintiff entitled to damages arising out of the manner in which her employment was terminated?

[34] Aggravated and punitive damages resulting from the manner the employment was terminated are available only if the employer engages in conduct that is, ”unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”: Honda v. Keays, 2008 SCC 39, at paras. 57- 60. Punitive damages may be awarded if the defendant’s conduct is proven to be “harsh, vindictive, reprehensible and malicious” and “extreme in its nature such that by any reasonable standard it is deserving of full condemnation and punishment”: Honda v. Keays, at paras. 62, 68. Aggravated damages may be awarded if there is a finding of bad faith on the part of the employer and the dismissal caused the plaintiff mental distress: Quach v. Mitrux Services Ltd., 2002 BCCA 25, at paras. 26, 27.

[35] Ms. Amerato argues that TST engaged in bad faith conduct. It is her position that TST knew she was disabled and bullied her into accepting the demotion. She relies on the following:

(a) The refusal to pay any severance or termination pay unless Ms. Amerato agreed to release all of her legal rights;

(b) Refusal to pay accrued vacation pay;

(d) A refusal to provide a reference letter;

(e) Dismissing Ms. Amerato, the month after she began collecting LTD benefits;

(f) Offering a similar supervisory position to another employee who had 10 less years of experience;

(g) Announcing to Ms. Amerato’s peers that she was no longer working at TST; and

(h) Bullying Ms. Amerato into accepting a demotion and a $10,000 reduction in salary.

[36] TST argues that there is no evidence of bad faith or malicious conduct on its part. TST relies on the following:

(a) All communications with Ms. Amerato were conducted in a professional manner;

(b) There is no evidence that the termination was due to her disability;

(c) It was not unreasonable to send an e-mail to her team advising she is leaving TST after receiving her lawyer’s letter stating that she was intending to pick up her personal belongings and return all company property;

(d) There was no obligation to offer a reference letter or outplacement services;

(e) The similar supervisory position was in Western Canada and was offered in May 2021 and was therefore not available to Ms. Amerato at the time of the termination of her employment; and

(f) The allegations of bullying are unfounded. TST denies that it sent the termination letter to Ms. Amerato to encourage her to accept the job change.

[37] TST also argues that Ms. Amerato failed to provide evidence of mental distress and is therefore not entitled to aggravated or moral damages.

[38] I am of the view that TST did not engage in bad faith conduct.

[39] It was not unreasonable for TST to send an e-mail to Ms. Amerato’s team that she was no longer employed. The e-mail was sent shortly after TST was advised that Ms. Amerato would be picking up her personal belongings and dropping off TST property. By the time TST was advised that Ms. Amerato would accept the new position, the e-mail had already been sent.

[40] I am unable to conclude on the evidence that TST acted in bad faith in not offering Ms. Amerato a comparable position in Western Canada, or that the position was available before the termination. I find there is no obligation on TST to provide a reference letter or outplacement services. I find that TST did not place any undue pressure on Ms. Amerato to accept the termination offer by stating that the long-term and short-term disability coverage would be eliminated. The termination of her employment would not affect Ms. Amerato’s existing disability claim.

[41] I conclude that TST’s conduct is not sufficiently malicious or outrageous to justify an award of punitive or aggravated damages.

Is the Plaintiff entitled to damages for discrimination?

[42] Ms. Amerato states that she was terminated from her employment because of her disability and is therefore entitled to damages for discrimination: Wilson v. Solis Mexican Foods Inc., [2013] O.J. No. 4271, 2013 ONSC 5799, at para. 56.

[43] To be entitled to damages for discrimination, the employee must establish that their disability was a factor in the decision to terminate the employment. Ms. Amerato states that at the time of the corporate merger, she approached TST and asked if her job was safe. She received assurances that it was. Ms. Amerato argues it was only after she began collecting LTD benefits that she was terminated from her employment. Ms. Amerato has no evidence to support her position that she was discriminated against, beyond the temporal connection between the date she began collecting LTD benefits and the termination of her employment.

[44] Although the Plaintiff was terminated from her employment within a month of receiving LTD benefits, the temporal connection does not of itself establish discrimination. However, the closeness in time is sufficient to require an explanation from the employer: Mou v. MHPM Project Leaders, 2017 HRTI 246, at para. 35. TST states that Ms. Amerato was terminated because her position was eliminated following the corporate merger that occurred in the spring of 2020, as well as the downturn in available work caused by the pandemic. Ms. Amerato concedes that she has no knowledge or information with respect to the impact of the pandemic on TST’s business. There is no evidence of any internal meetings in which Ms. Amerato’s disability was specifically detailed and discussed: Wilson v. Solis Mexican Foods Inc., at paras. 9, 67 and 73.

[45] I am of the view that there is insufficient evidence that links the termination to Ms. Amerato’s disability. I find that Ms. Amerato was not discriminated against because of her disability.

Are damages payable to the Plaintiff and if so, are the damages reduced by the disability benefits?

[46] At the time of the termination on January 22, 2021, Ms. Amerato was disabled. She was receiving LTD benefits. The parties agree that the premiums for the disability insurance were paid, at least in part, by Ms. Amerato. She argues that the disability benefits are not to be deducted from the damages to which she is entitled.

[47] TST does not argue that the disability benefits are to be deducted from the award of damages for wrongful dismissal. Instead, TST argues that the court should decline to award any damages for reasonable notice. Ms. Amerato was collecting LTD benefits before and after the alleged termination. The total income she received in income and benefits did not materially change following the termination. TST argues that if Ms. Amerato is awarded damages based on the income and disability benefits she received before the termination, she will receive a windfall.

[48] In Sylvester v. British Columbia, 1997 CanLII 353 (SCC), 1997, 2 SCR 315, the employee was receiving short term disability benefits at the time of the termination of his employment. The employer offered 12.5 months’ notice and stated that it would top up any short-or long-term disability benefits received during the notice period. The employee sued for wrongful dismissal and sought damages consisting of the salary he would have earned had he worked during the notice period, in addition to the disability benefits. The court stated:

An employee who is wrongfully terminated without reasonable notice of termination is entitled to damages for breach of contract. These damages represent the salary the employee would have earned had the employee worked during the notice period, less any amounts credited to mitigation.

The appellant did not challenge the finding that the respondent was entitled to damages of $102,100, being the salary, he would have earned had he worked during the notice period. This is consistent with the principle that an employee who is wrongfully dismissed without adequate notice of termination is entitled to damages consisting of the salary the employee would have earned had the employee worked during the notice period. The fact that an employee could not have worked during the notice period is irrelevant to the assessment of these damages. They are based on the premise that the employee would have worked during the notice period. Therefore, an employee who is wrongfully dismissed while working and an employee who is wrongfully dismissed while receiving disability benefits are both entitled to damages consisting of the salary the employee would have earned had the employee worked during the notice period; at paras. 1 and 9.

[49] At the time of termination, the salary Ms. Amerato would have earned if she was able to work was $58,730.02 per year. She is entitled to damages for wrongful dismissal based on her annual salary. It would not be fair to pay damages based on the income less disability benefits she was receiving at the time of termination. If her disability ended shortly after the termination, she would not receive the appropriate amount of damages to compensate her for the employer’s failure to provide sufficient notice. Also, if the employer is not responsible for payment of the terminated employee’s salary, employers may be encouraged to terminate the employment of disabled employees.

[50] The issue of whether the disability benefits received during the notice period ought to be deducted from the award of damages, is to be determined by the terms of the employment contract and the intention of the parties. In Sylvester, the employer had set up and fully funded the disability plan. The employee had not made any contributions to the plan. The court held that in those circumstances, the damages for wrongful dismissal are to be reduced by the amount of disability benefits received from the employer during the notice period: Sylvester, at para. 22.

[51] In Sills v. Children’s Aid Society of Belleville (City), Hastings (County) & Trenton (City), 1999 CanLII 14860 (ONSC), the disability insurance was provided pursuant to a private insurance plan for which the employee paid at least a portion of the premiums. The court concluded that because the employee had contributed to the premiums, it can be inferred that the parties did not intend the disability benefits to be deducted from the damages for wrongful dismissal.

In the case before me, as pointed out above, although I can find nothing that demonstrates clearly what the intention of the parties was as to the entitlement of the employee to receive both disability benefits and damages, I do make a finding that the employee contributed indirectly to the private plan. The disability benefits were earned by the plaintiff as part of her compensation and as part of a trade-off in arriving at benefits and salary. The plaintiff stated this in her evidence, and it stood uncontradicted.

It is my view, because the plaintiff contributed to the disability plan, Sylvester (supra) does not apply in this case, and the disability benefits should not be deducted from the value of any payments the employee was entitled to receive during the notice period: at paras 45, 46.

[52] In dismissing the appeal, the Court of Appeal stated:

I consider it reasonable to assume that an employee would not willingly negotiate and pay for a benefit that would allow her employer to avoid responsibility for a wrongful act. I consider it reasonable to infer that parties would agree that an employee should retain disability benefits in addition to damages for wrongful dismissal where the employee has effectively paid for the benefits in question: Sills v. Children’s Aid Society, 2001 CanLII 8524 (ON CA), [2001] O.J. No. 1577 (ON CA), at para. 45.

[53] In McNamara v. Alexander Centre Industries Ltd., 2000 CanLII 22603 (ONSC), the disability plan was purchased from a private third-party insurer. The employee provided evidence that the benefits were integral to his discussions on salary at the time of hire and that he would not have accepted the salary but for inclusion of the benefit package. The disability benefits were not deducted from the wrongful dismissal damages because the employee had contributed, at least indirectly, to the private plan: at para. 40.

[54] The uncontradicted evidence on the motion is that Ms. Amerato, paid at least a portion of the premiums for the disability coverage. As such, TST is not entitled to a deduction of the LTD benefits received by Ms. Amerato during the notice period.

[55] TST argues that if the disability benefits are not deducted from the damages for wrongful dismissal, Ms. Amerato will receive double recovery. There is no evidence before me as to whether the LTD carrier will require reimbursement of benefits paid during a period when the employee receives damages for wrongful dismissal. This is an issue as between Ms. Amerato and her disability insurer. Regardless, the employer is not entitled to a reduction of its responsibility to pay damages for wrongful dismissal when the employee, at least partially paid premiums for LTD coverage.

[56] I conclude that Ms. Amerato’s damages for wrongful dismissal are based on her pre-termination salary of $58,730.02. I also conclude that TST is not entitled to a deduction for the disability benefits received during the notice period.

Did the Plaintiff mitigate her damages?

[57] An employee is under a duty to mitigate their wrongful dismissal damages. Income earned by the employee during the notice period is generally treated as mitigation of loss: Michaels v. Red Deer College, 1975 CanLII 15 (SCC) at para. 332.

[58] At the time of the termination, Ms. Amerato was disabled and was unable to work on a full-time basis. I find that her ability to find alternative employment was affected by her age and disability as well as the restrictions in the economy as a result of the COVID-19 pandemic.

[59] Ms. Amerato accepted the demotion offered by TST and is working as many hours as she can. She currently works 12 hours a week. Based on her post-termination salary she receives $276.92 per week. TST is entitled to a credit for the amount she receives in income during the notice period. For the reasons set out above, TST is not entitled to a deduction of the disability benefits.

[60] The motion for summary judgment was brought during the notice period. In these circumstances, the court is to adopt a Trust and Accounting Approach that establishes a constructive trust in favour of the employer to account for any income earned by the employee during the notice period: Paquette v. TeraGo Networks Inc., at para. 68. Ms. Amerato is earning income from TST. TST will be able to monitor the mitigation earnings while Ms. Amerato continues to work at the company.

DISPOSITION

[61] I find that Ms. Amerato was terminated from her employment and is entitled to damages for wrongful dismissal. The reasonable notice period is 18 months. The amount of damages is based on her salary at the time of the termination which was $58,730.02. At 18 months, the damages are $88,095.03.

[62] I do not award damages for bad faith or discrimination. I am unable to conclude that TST’s conduct was so “harsh, vindictive, reprehensible and malicious” to justify an award of punitive damages. I am also of the view that there is insufficient evidence with respect to the corporate restructuring that would allow me to conclude that the termination was because of Ms. Amerato’s disability and not because the position had been eliminated.

[63] I do not award any damages for the group benefits or vacation pay. Ms. Amerato concedes that there has been no lapse in her benefits coverage when she accepted the new position. She also received the same amount of vacation in her new position. I also do not award Ms. Amerato her accrued vacation pay. The uncontradicted evidence is that TST does not carry forward vacation pay.

[64] The damages award is reduced by the income Ms. Amerato earned through her employment with TST, during the notice period. TST is entitled to a credit in the amount of the income earned by Ms. Amerato from the date of termination to the date of this endorsement. With respect to the balance of the notice period, a constructive trust is established in favour of TST. Ms. Amerato must account for all income earned through her employment during the notice period and provide a credit to TST for these amounts.

[65] The damages for wrongful dismissal are not reduced by the amount of the LTD benefits Ms. Amerato has received and will receive during the notice period. Ms. Amerato paid or contributed to the disability insurance premiums and as a result I conclude that it was the intention of the parties that the disability benefits would not be deducted from the award of damages for wrongful dismissal. Ms. Amerato may have to account to her disability insurer for the amount received in damages for wrongful dismissal, however that issue is not before me.

[66] Ms. Amerato is successful and is presumptively entitled to her costs. Following the argument, counsel for Ms. Amerato submitted a cost outline. She seeks costs of the motion and the action on a partial indemnity basis in the amount of $38,779.01 inclusive of H.S.T. TST filed a cost outline in which TST claims costs of the motion in the amount of $8,973.78 on a partial indemnity basis.

[67] If the parties are unable to agree on costs, Ms. Amerato may file written cost submissions of no more than three pages, excluding caselaw and bill of costs, within 10 days of the date of this endorsement. TST may file written cost submissions in reply on the same basis within 10 days of receiving Ms. Amerato’s submissions.

DATE: January 26, 2022

Amerato v. TST-CF Solutions LP, 2022 ONSC 5339

Case Summary

OVERVIEW

BACKGROUND FACTS

THE ISSUES

ANALYSIS

Is this an appropriate case for summary judgment?

Was the Plaintiff terminated from her employment?

What is the reasonable notice period?

Is the Plaintiff entitled to damages arising out of the manner in which her employment was terminated?

Is the Plaintiff entitled to damages for discrimination?

Are damages payable to the Plaintiff and if so, are the damages reduced by the disability benefits?

Did the Plaintiff mitigate her damages?

DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 1

Legal Tests 4