Christina Miranda v. Respiratory Services Limited
COURT FILE NO.: CV-18-00584660-0000
DATE: 20221027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHRISTINA MIRANDA
Plaintiff
– and –
RESPIRATORY SERVICES LIMITED
Defendant
Sarah Mills, for the Plaintiff
Leena L. Kumar and Evan Farrugia, for the Defendant
HEARD: March 30-31, 2022
REASONS FOR JUDGMENT
VERMETTE J.
[1] The Plaintiff sues the Defendant for wrongful dismissal. The parties disagree as to whether the Plaintiff was dismissed. In the event the court finds that she was dismissed, the parties also disagree regarding the appropriate length of the notice period and whether the Plaintiff failed to mitigate her damages.
A. FACTUAL BACKGROUND
1. The parties
[2] The Defendant Respiratory Services Limited (“RSL”) is a corporation incorporated pursuant to the laws of the Province of Ontario. It provides respirology medical services in the City of Toronto. RSL was founded by Dr. Emmanuel Lilker. In early 2013, RSL’s shares were sold to a corporation controlled by Dr. Satyendra Sharma. Dr. Sharma became the President of RSL. Dr. Lilker continued to operate his private medical practice at RSL until he passed away on February 15, 2018.
[3] The Plaintiff, Christina Miranda, was employed by RSL for over 35 years, from late 1982 to 2018. She had no written employment contract with RSL. She was an office administrator and her duties included liaising with patients for testing and consultation, making appointments, answering telephone inquiries, record maintenance, billing, mail distribution, and other typical receptionist duties.
[4] The Plaintiff’s only witness at trial was herself. The Defendant had three witnesses: Dr. Sharma, Terence Kwong, RSL’s payroll administrator, and Margarida Soares, secretary and office manager at RSL.
2. Ms. Miranda’s employment at RSL until 2018
[5] Ms. Miranda started working at RSL in or around November 1982. She was 23 years old at the time and had just obtained a health sciences certificate at George Brown University. She was hired by Dr. Lilker as RSL’s only office administrator.
[6] From 1982 until sometime in 2013, Ms. Miranda was working full time at RSL, i.e. from 10 a.m. to 6 p.m., Monday to Friday.
[7] In or around January 2013, the shareholders of RSL (i.e. Dr. Lilker and members of his family) entered into a Share Purchase Agreement made as of November 6, 2012 with 1882601 Ontario Inc. as the purchaser and Dr. Sharma as the covenantor. The Share Purchase Agreement contained a list of current employees. Ms. Miranda was listed as a “Receptionist/Nurse/Lab Tech” who started in November 1982 with a salary of $30.875 per hour.
[8] After the sale, Ms. Miranda continued her regular duties with Dr. Lilker. Shortly after the sale, her hourly wage was increased to $34.00 per hour.
[9] Later in 2013, Dr. Sharma started hiring his own staff, including his wife, Angela Sharma, and Margarida Soares. Ms. Soares has worked as a secretary and office manager for RSL since June 2013. Some of Ms. Miranda’s duties were taken over by Ms. Sharma and Ms. Soares after they were hired.
[10] At around the same time, Dr. Lilker decided to reduce his schedule from five days to three days per week. Ms. Miranda’s schedule was also reduced from five to three days per week at that time. Pursuant to her new schedule, she was working on Tuesdays, Wednesdays and Thursdays, when Dr. Lilker was working at RSL. Dr. Sharma asked Ms. Miranda to start logging in a notebook the times at which she started and finished.
[11] Ms. Miranda did not go in the office when Dr. Lilker was not there. She would take unpaid days off when Dr. Lilker was not in the office. Thus, her hours varied with Dr. Lilker’s schedule.
[12] Dr. Lilker’s practice was to take long vacations every year. While Dr. Lilker was away from RSL on vacation, Ms. Miranda would take her own vacation and, for the balance of Dr. Lilker’s vacation, an unpaid leave.
[13] Ms. Miranda’s T4s reflect the following employment income for the years 2013 to 2017:
2013 $23,392.00
2014 $36,450.64
2015 $41,170.26
2016 $35,160.08
2017 $33,992.86
[14] Some of the fluctuations in Ms. Miranda’s annual income is due to the fact that for a period of approximately 3-4 months, Dr. Lilker paid her wages with his own personal cheques. Ms. Miranda’s understanding was that she and her salary were a source of tension between Dr. Lilker and Dr. Sharma, and Dr. Lilker paid her salary for a period of time to de-escalate the situation.
[15] According to Ms. Miranda, Dr. Sharma told her on many occasions over the years that he could not afford to pay her. He also frequently complained to her during her shifts that she “make[s] so much per hour”.
3. Events following Dr. Lilker’s passing
[16] In or around January 2018, Dr. Lilker took his annual vacation, as he usually did each year. As was her practice, Ms. Miranda also took her vacation/unpaid leave in January and February 2018. It was planned that both Dr. Lilker and Ms. Miranda would return to work in March 2018, after Dr. Lilker’s return from his vacation in Florida.
[17] Ms. Miranda’s evidence was that she knew when Dr. Lilker would come back to the office after his vacations as appointments with patients would be scheduled on the day that he was coming back. She stated that she would bring home a list of the patients who had appointments and she would call them from home to remind them of their appointment one week before the appointment.
[18] As stated above, Dr. Lilker passed away on February 15, 2018. Ms. Miranda was informed of his passing by his family.
[19] On March 4, 2018, Ms. Soares called Ms. Miranda and told her that Dr. Sharma wanted to meet with her the next day at RSL.
[20] On March 5, 2018, Ms. Miranda met with Dr. Sharma at RSL. Their respective versions of what was discussed at that meeting diverge. The following is Ms. Miranda’s affidavit evidence regarding this meeting:
During this meeting, Dr. Sharma told me that since Dr. Lilker had died, there was no work available for me at RSL.
After Dr. Sharma told me that RSL had no work for me, he made a proposal.
The proposal that Dr. Sharma made was that my employment at RSL would be continued if I agreed to get paid in cash, reduce my schedule to 1-2 days and reduce my wage from $34.00 per hour to $23.00 per hour.
During this meeting, Dr. Sharma also suggested that I apply for employment insurance benefits to make up for the difference in my income.
I was overwhelmed by Dr. Sharma's proposal to me, and I asked for some time to consider the offer.
[21] Dr. Sharma states the following in his affidavit:
The clinic was in urgent need of a secretary to assist with the transition and Ms. Miranda was aware of Dr. Lilker’s patients and practice. However, Ms. Miranda did not at this time offer to resume work at the clinic to assist with the transition until a new Doctor was found. Ms. Miranda requested for an ROE so that she could apply for EI.
I did not at any time offer to pay Ms. Miranda in cash or reduce her hourly wages as she alleges in her email of March 8, 2018. At all material times RSL informed Ms. Miranda that she would have to report to work once a new Doctor was found.
[22] At trial, Dr. Sharma stated that during the March 5, 2018 meeting, he told Ms. Miranda that: (a) there were hours available for her to help out two other doctors at RSL, including Dr. Sharma; and (b) she would be called in to do more work if he found a new doctor and Ms. Miranda would become their administrative assistant. According to Dr. Sharma, despite being told that she could work for other doctors, Ms. Miranda did not want to work and requested a Record of employment (“ROE”). He said that Ms. Miranda did not want to work on Mondays and Fridays.
[23] On March 5, 2018, after his meeting with Ms. Miranda, Dr. Sharma instructed Mr. Kwong to prepare a ROE for Ms. Miranda. Dr. Sharma instructed Mr. Kwong to use the code for shortage of work in the ROE.
[24] Ms. Miranda’s evidence is that she never requested a ROE from RSL and she never told Dr. Sharma that she would be applying for employment insurance. She states that it was Dr. Sharma who instructed her to apply for employment insurance.
[25] On March 8, 2018, Ms. Miranda sent the following e-mail to Dr. Sharma and Ms. Soares:
Dr. Sharma,
I have considered your proposal and I can’t accept working only 1-2 days per week with lower salary ($23/hr). For the last 6 years, I have worked 3 days per week, 8 hours per day, at $34/hr and I am happy to continue working under my existing terms. I also can’t accept being paid in cash as this would be fraud. Please advise me in writing whether you will honour my existing employment terms.
Thanks.
[26] Dr. Sharma sent the following response to Ms. Miranda on the same day:
I did not give you any proposals. Terence has prepared ROE for you. We do not have work for you since the doctor you worked for had died.
Best wishes
[27] The ROE that RSL prepared for Ms. Miranda indicates that the last day for which she was paid was January 21, 2018. It also indicates that the reason for issuing the ROE was “A00”. Based on the schedule to the ROE, the letter “A” means “Shortage of work”. While the ROE was dated March 6, 2018, Ms. Miranda received it on March 9, 2018.
4. RSL’s requests that Ms. Miranda come back to work
[28] On March 20, 2018, Ms. Soares sent the following e-mail to Ms. Miranda:
Hi Christina,
We have Dr. Ibrahim in the office on March 28, 2018 and you can come in for 8:30 please.
[29] Ms. Miranda responded to Ms. Soares’ e-mail as follows:
Hi Margarida,
Thank you for reaching out to me. My employment was terminated on March 6th by Dr. Sharma when he placed me on an indefinite layoff. I am entitled to be employed under the same terms and conditions of employment as I enjoyed prior to Dr. Lilker’s death.
[30] Later on March 20, 2018, Dr. Sharma sent an e-mail to Ms. Miranda. He wrote the following:
Hello Christina,
I did not terminate your job!
There was no work for you and you wanted to go on UI.
Now we have a doctor on March 28th and we are calling you to work for him for that day.
It will be on the same terms.
You will be called whenever there is work unless you decide to not take the hours.
[31] On March 21, 2018, Ms. Miranda responded to Dr. Sharma’s e-mail as follows:
Dr. Sharma,
I was prepared to continue working under the same terms and conditions of employment as I did prior to Dr. Lilker’s death. But instead, you terminated my employment by placing me on an indefinite layoff. Moving forward, I would ask that you send any future correspondence directly to my lawyer, Nav Bhandal.
[32] Dr. Sharma sent the following response a few minutes later:
So you are refusing to come back to work?
It is up to you. We will have to them [sic] find another coverage.
[33] Dr. Sharma’s affidavit evidence is that as of March 20, 2018, the new doctor’s schedule was not determined. In his affidavit, he states that “Ms. Miranda was provided with the flexibility and the opportunity to decide her days/hours of employment with the new Doctor after Dr. Lilker’s passing.” He further states that Ms. Miranda’s days/hours of work had to be determined based on the new doctor’s schedule. This evidence is not completely consistent with Dr. Sharma’s evidence at trial where he stated that the new doctor had been recruited to work every Wednesday and that Ms. Miranda should have understood from RSL’s e-mails that she was being asked to come to work every Wednesday, on a recurring basis.
[34] The Plaintiff’s Statement of Claim was issued on March 26, 2018.
[35] On March 27, 2018, Ms. Miranda wrote to Ms. Soares as follows:
Hi Margarida,
As I mentioned to Dr. Sharma last week, prior to Dr. Lilker’s death, I had a set schedule. I was more than happy to continue working under that schedule, but Dr. Sharma elected to unilaterally alter that schedule. I have also asked Dr. Sharma to forward all future correspondence directly to my lawyer. I would also ask you to forward any future emails directly to my lawyer as well at nbhandal@kmblaw.com. Thank you.
[36] It is unclear what prompted Ms. Miranda to send this e-mail to Ms. Soares on March 27, 2018 and whether she was responding to a communication from Ms. Soares. No such communication is included in the record before me.
[37] Ms. Soares forwarded Ms. Miranda’s e-mail to Dr. Sharma. Later that day, Dr. Sharma sent the following e-mail to Ms. Miranda:
Hello,
There is work for you this week again on Wednesday.
You have refused to come to work whenever there is work.
It is your option if you don’t want to work.
I told you before many times that you will work on the same terms.
There may be more work in future but if you don’t want to work we have to find other staff.
Tomorrow there is a doctor all day at TLC.
I am not responsible for sending anything to your lawyer.
If you don’t want to work, it is up to you.
[38] Ms. Miranda’s evidence is that, despite her e-mails reproduced above, she was prepared to return to work for the shift on March 28, 2018, but Ms. Soares advised her by phone the night before not to attend RSL as there was no work and the shift was cancelled. This is denied by Ms. Soares who testified that she did not cancel any shift. I accept Ms. Soares’ evidence on this point and reject Ms. Miranda’s evidence which is unsupported by any document and is inconsistent with the e-mails that were exchanged on March 28, 2018, as set out below, which do not mention any cancellation.
[39] Ms. Miranda responded to Dr. Sharma’s March 27, 2018 e-mail as follows on March 28, 2018:
Dr. Sharma,
I have not refused to come to work. I have repeatedly made it clear since Dr. Lilker passed away that I was prepared to work my existing schedule of Tuesday through Thursday at the same hours and pay. You have unilaterally altered those terms by refusing to honour this schedule. Offering work on random days does not amount to honouring my prior terms and conditions of employment.
Moving forward, my lawyer will be contacting you directly.
[40] Dr. Sharma sent the following e-mail in response:
WE did not alter anything.
We can only call you if there is a doctor or the patients.
If there are no patients what are you going to do?
I have told you a number of times that you will work for the same salary, check the emails.
We needed a secretary urgently today, you refused.
You have consistently REFUSED to come to work.
There is work again next week on Wednesday and for 7th time we will ask you to come to work.[^1]
If you would not, after this we would find other staff.
[41] Ms. Soares’ evidence regarding the March 28, 2018 shift was that this was an offer to Ms. Miranda to come to work just for one day. She stated that this offer could not have been an offer to come on a recurring basis as Dr. Ibrahim’s schedule was not known at that time. This contradicts Dr. Sharma’s evidence at trial which, as stated above, was that the offer to Ms. Miranda to come to work on March 28, 2018 was implicitly an offer to come back on a weekly basis on Wednesdays.
[42] Dr. Sharma’s evidence at trial regarding Dr. Ibrahim was that he had been recruited to work at RSL one day per week and to eventually transition to two days per week.
5. Ms. Miranda’s efforts to find new employment
[43] After Ms. Miranda’s employment at RSL came to an end, she found herself applying for jobs for the first time in over 35 years, at the age of 58 years. She only had one employer on her résumé, RSL, and a limited skill set with respect to computers.
[44] Ms. Miranda’s evidence is that she started searching for new employment opportunities on March 19, 2018 and that over the course of the next two years, she spent an average of 2-3 hours per day looking for a new job. She documented her efforts in a chart that has 163 pages. Ms. Miranda applied broadly, for different kinds of positions, including positions in medical and retail establishments. Over this period of time, she only had three interviews.
[45] Ms. Miranda has not secured new employment.
B. DISCUSSION
[46] As stated above, the three main issues are whether Ms. Miranda was dismissed, the length of any notice period, and mitigation.
1. Constructive dismissal
[47] Ms. Miranda’s position is that RSL constructively dismissed her employment after Dr. Lilker’s death by unilaterally placing her on a layoff and telling her that RSL no longer had any work for her.
[48] RSL’s position is that Ms. Miranda was never terminated. According to RSL:
a. It did not dismiss Ms. Miranda nor was it unable to continue employing her as it needed her services in order for a new doctor to run their practice.
b. Ms. Miranda was only temporarily laid off for a period of less than one month, in accordance with section 56 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”).
c. It was an express term of Ms. Miranda’s employment contract with RSL that she could be temporarily laid off on unpaid leave or work less than three days per week.
d. RSL had no choice but to impose the temporary layoff while it looked for a new doctor. The layoff was made in good faith.
e. The layoff was accepted by Ms. Miranda who knew that her work would have to be suspended since the doctor she worked for had died.
f. Ms. Miranda requested an ROE and offered to take employment insurance.
a. Applicable legal principles
[49] An employer can make changes to an employee’s position where such changes are allowed by the employment contract. The extent of the employer’s discretion to make changes will depend on what the parties agreed when they entered into the contract. See Farber v. Royal Trust Co., 1997 CanLII 387 (SCC), [1997] 1 S.C.R. 846 at para. 25 (“Farber”).
[50] However, where an employer decides unilaterally to make substantial changes to the essential terms of an employee’s contract of employment and the employee does not agree to the changes and leaves their job, the employee has not resigned, but has been constructively dismissed. By unilaterally seeking to make substantial changes to the essential terms of the employment contract, the employer is ceasing to meet its obligations and is therefore terminating the contract. In such circumstances, the employee is entitled to compensation in lieu of notice. See Farber at paras. 24, 33, 34.
[51] To find that an employee has been constructively dismissed, it is not necessary for the employer to have intended to force the employee to leave their employment or to have been acting in bad faith when making substantial changes to the contract’s essential terms. See Farber at para. 27.
[52] In Farber, the Supreme Court of Canada summarized as follows what must be determined in order to conclude that an employee has been constructively dismissed (at para. 26):
To reach the conclusion that an employee has been constructively dismissed, the court must therefore determine whether the unilateral changes imposed by the employer substantially altered the essential terms of the employee’s contract of employment. For this purpose, the judge must ask whether, at the time the offer was made, a reasonable person in the same situation as the employee would have felt that the essential terms of the employment contract were being substantially changed. The fact that the employee may have been prepared to accept some of the changes is not conclusive, because there might be other reasons for the employee’s willingness to accept less than what he or she was entitled to have.
[53] In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 (“Potter”), the Supreme Court of Canada refined the principles applicable to constructive dismissal. It noted that since employment contracts are dynamic in comparison with commercial contracts, a flexible approach should be taken in determining whether the employer’s conduct evinced an intention no longer to be bound by the contract. The Supreme Court stated that constructive dismissal can take two forms: (a) a single unilateral act that breaches an essential term of the contract, or (b) a series of acts that, taken together, show that the employer no longer intended to be bound by the contract. See Potter at paras. 32-33, 43.
[54] The first type of constructive dismissal requires a review of specific terms of the contract and has two steps: (1) the employer’s unilateral change must be found to constitute a breach of the employment contract, and (2) if it does constitute such a breach, it must be found to substantially alter an essential term of the contract. Often, the first step of the test will require little analysis, as the breach will be obvious. Where the breach is less obvious, however, a more careful analysis may be required. See Potter at paras. 32, 34.
[55] At the first step of the analysis, the court must determine objectively whether a breach has occurred. To do so, it must ascertain whether the employer has unilaterally changed the contract. If an express or an implied term gives the employer the authority to make the change, or if the employee consents to or acquiesces in it, the change is not a unilateral act and, therefore, will not constitute a breach. If so, it does not amount to constructive dismissal. Moreover, to qualify as a breach, the change must be detrimental to the employee. See Potter at para. 37.
[56] With respect to the second type of constructive dismissal, the employee is not required to point to an actual specific substantial change in the terms of the employment contract that on its own constitutes a substantial breach. Constructive dismissal will be found if the employer’s conduct, when viewed in the light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract. See Potter at para. 42.
[57] Each constructive dismissal case must be decided on its own facts, since the specific features of each employment contract and each situation must be taken into account to determine whether the essential terms of the contract have been substantially changed. See Farber at para. 35 and Potter at para. 40.
[58] A significant reduction in an employee’s income by an employer has been found to amount to constructive dismissal: Farber at para. 36.
[59] A unilateral layoff has also been found to amount to constructive dismissal. In Elsegood v. Cambridge Spring Service (2001) Ltd., 2011 ONCA 831 at para. 14 (“Elsegood”), the Court of Appeal stated that an employer has no right to lay off an employee at common law. It further stated that “[a]bsent an agreement to the contrary, a unilateral layoff by an employer is a substantial change in the employee’s employment, and would be a constructive dismissal.”
[60] This is the case despite subsections 56(1)(c) and 56(2) of the ESA which, on their face, appear to allow short temporary layoffs. However, the case law and the ESA itself make it clear that the ESA does not displace greater contractual or common law rights and protections: see, e.g., subsections 5(2) and 8(1) of the ESA.
[61] The legal principles regarding temporary layoffs and constructive dismissals were summarized as follows by Justice Morgan in Bevilacqua v. Gracious Living Corporation, 2016 ONSC 4127 at paras. 9-11:
[9] The Ontario Court of Appeal has held that a unilateral layoff by an employer is, absent agreement to the contrary, a substantial change in employment, and that it therefore constitutes a constructive dismissal: Elesegood [sic] v Cambridge Spring Service, 2011 ONCA 831, at para 14. An employer has no right to impose a layoff either by statute or common law, unless that right is specifically agreed upon in the contract of employment. The fact that a layoff may be conducted in accordance with the Employment Standards Act, 2000, SO 2000, c. 41, is irrelevant to the question of whether it is a constructive dismissal. Gracious Living was not legally authorized to “simply place [Mr. Bevilacqua’s] employment status on hold without pay and expect that this will not constitute a constructive dismissal”: Martellacci v CFC/INX Ltd (1997), 1997 CanLII 12327 (ON SC), 28 CCEL (2d) 75, at para 30 (Gen Div).
[10] This lack of right to layoff an employee applies even where the employer does not mean to repudiate the contract, Damery v Matchless Inc (1996), 1996 CanLII 5518 (NS SC), 151 NSR (2d) 321 (NS SC), or where the layoff is temporary in nature: Stolze v Addario (1997), 1997 CanLII 764 (ON CA), 36 OR (3d) 323 (Ont CA). An employee in Mr. Bevilaqua’s position is entitled to the opportunity to assess his newfound situation for a reasonable period of time in order to come to a decision as to whether to accept it: Belton v Liberty Insurance Co of Canada (2004), 2004 CanLII 6668 (ON CA), 72 OR (3d) 81, at para 8 (Ont CA).
[11] The employer’s imposition of a layoff in the absence of a contractual clause permitting a layoff effectively repudiated a fundamental term of its employee’s employment agreement: Chen v Sigpro Wireless Inc, 2004 CarswellOnt 2225, at para 12 (SCJ). Gracious Living may not have intended to terminate Mr. Bevilacqua, but its actions amounted to a constructive dismissal.
[62] RSL relies on Trites v. Renin Corp., 2013 ONSC 2715 at para. 29 (“Trites”) for the proposition that “there is no room remaining at law for the common law claim for a finding of constructive dismissal in circumstances where a temporary layoff has been rolled out in accordance with the terms of the ESA”. However, in addition to the fact that this statement was obiter in Trites (since the judge found that the layoff in question did not qualify as a temporary layoff under the ESA), Trites has not been followed by subsequent cases because it is contrary to the weight of the authorities: see, e.g., Michalski v. Cima Canada Inc., 2016 ONSC 1925 at para. 23 and Wiens v. Davert Tools Inc., 2014 CanLII 47234 at paras. 140-142 (Ont. S.C.J.)
b. Application to this case
[63] As set out above, Ms. Miranda’s evidence and Dr. Sharma’s evidence diverge with respect to what was discussed during the March 5, 2018 meeting. I prefer the evidence of Ms. Miranda on this issue. Her evidence is more consistent with the e-mails that were exchanged at the relevant time than Dr. Sharma’s evidence. It is also consistent with the evidence that Dr. Sharma thought that her salary was too high (including Dr. Sharma’s statements to this effect to Ms. Miranda and the fact that Dr. Lilker had to pay Ms. Miranda’s salary using his personal funds for a few months), which I accept.[^2]
[64] Dr. Sharma’s affidavit evidence that RSL was “in urgent need of a secretary to assist with the transition” and his evidence at trial that he told Ms. Miranda that there were hours available for her to help Dr. Sharma and another doctor at RSL are unsupported by any evidence and contradicted by e-mails sent by Dr. Sharma in March 2018. In his e-mail of March 8, 2018, Dr. Sharma wrote: “We do not have work for you since the doctor you worked for had died.” In his e-mail of March 20, 2018, Dr. Sharma stated: “There was no work for you”. In addition, Dr. Sharma instructed Mr. Kwong to use the code for shortage of work in Ms. Miranda’s ROE. I also note that Dr. Sharma’s affidavit does not state anywhere that he offered to Ms. Miranda on March 5, 2018 to work for two other doctors at RSL.
[65] Further, I do not accept Dr. Sharma’s affidavit evidence that “[a]t all material times RSL informed Ms. Miranda that she would have to report to work once a new Doctor was found.” Based on the evidence, I find that this is an after-the-fact narrative developed by the Defendant. In his e-mail dated March 8, 2018, Dr. Sharma simply advised Ms. Miranda that there was no work for her and that RSL had prepared a ROE for her. He ended his e-mail with the words “Best wishes”. There is no mention of Ms. Miranda being recalled to work in the future.
[66] Moreover, there is no commitment in writing anywhere on the part of RSL that Ms. Miranda would have a position with a new doctor, even in the communications that took place later in March 2018. In his e-mail dated March 20, 2018, Dr. Sharma wrote: “Now we have a doctor on March 28th and we are calling you to work for him for that day.” [Emphasis added.] In the same e-mail, he also stated the following: “You will be called whenever there is work unless you decide to not take the hours.” [Emphasis added.] Dr. Sharma repeated the same statements in his e-mail dated March 27, 2018:
Hello,
There is work for you this week again on Wednesday.
You have refused to come to work whenever there is work.
It is your option if you don’t want to work.
I told you before many times that you will work on the same terms.
There may be more work in future but if you don’t want to work we have to find other staff.
Tomorrow there is a doctor all day at TLC.
I am not responsible for sending anything to your lawyer.
If you don’t want to work, it is up to you. [Emphasis added.]
[67] Similarly, on March 28, 2018, Dr. Sharma stated the following in his e-mail:
a. “We can only call you if there is a doctor or the patients. If there are no patients what are you going to do?”
b. “There is work again next week on Wednesday and for 7th time we will ask you to come to work.”
[68] Based on these e-mails, I agree with Ms. Miranda’s characterization that RSL offered her single shifts. This is confirmed by Ms. Soares’ evidence. No formal commitments were made by RSL for an ongoing position for Ms. Miranda.
[69] I now turn to the test for constructive dismissal.
[70] In my view, RSL’s decision to lay off Ms. Miranda on March 5, 2018 constituted a breach of Ms. Miranda’s employment contract. Although Ms. Miranda agreed in the past to take unpaid leaves while Dr. Lilker was on vacation, she was never formally laid off. Further, she had a fixed and known return date, and the terms of her employment were to remain the same upon her return, including the number of days that she would usually be working per week. This is to be contrasted with the unilateral and indefinite layoff imposed on her by RSL on March 5, 2018, and the lack of commitment on the part of RSL to recall her and/or to provide her with three or even two days of work per week. I find that RSL did not have the authority to impose such a layoff under Ms. Miranda’s employment contract.
[71] I also find that RSL’s breach of Ms. Miranda’s employment contract substantially altered an essential term of the contract in that RSL failed to provide her with work and compensation. See Gent v. Strone Inc., 2019 ONSC 155 at para. 29. In my view, a reasonable person in the same situation as Ms. Miranda would have felt that the essential terms of her employment contract were being substantially changed. As stated by the Court of Appeal in Elsegood, “[a]bsent an agreement to the contrary, a unilateral layoff by an employer is a substantial change in the employee’s employment”.
[72] Thus, I conclude that Ms. Miranda was constructively dismissed on March 5, 2018. She was entitled to treat RSL’s unilateral imposition of the layoff as bringing her contract of employment to an end and had the immediate right to sue for constructive dismissal: see Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 at para. 55. Therefore, I reject RSL’s submission that Ms. Miranda resigned or abandoned her employment by refusing to return to work when she was recalled. Her decision not to return to work will be considered in the context of her obligation to mitigate her damages.
2. Notice period
[73] Given my finding that Ms. Miranda was dismissed by RSL, she was entitled to reasonable notice of her termination or, in the absence of reasonable notice, pay in lieu thereof.
[74] Ms. Miranda’s position is that the appropriate notice period is 26 months. RSL did not engage on this issue and focused its submissions on mitigation, which is discussed below.
[75] In wrongful dismissal actions, the following factors are to be considered when determining the reasonable notice period: (a) the character of the employment; (b) the length of service of the employee; (c) the age of the employee; and (d) the availability of similar employment, having regard to the experience, training and qualifications of the employee. See Bardal v. Globe & Mail Ltd., 1960 CanLII 294, 24 D.L.R. (2d) 140 at 145 (Ont. H.C.). Determining the period of reasonable notice is an art, not a science, and there is no one “right” figure for reasonable notice: Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 at para. 9 (Ont. C.A.) (“Lowndes”). Judges must weigh and balance all relevant factors and no one factor should be given disproportionate weight. I note, however, that the factor of the character of the employment has been found to be a factor of declining relative importance: see Lowndes at para. 9, Arnone v. Best Theratronics Ltd., 2015 ONCA 63 at para. 11 and Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 at para. 27.
[76] Although there is no absolute upper limit or cap on what constitutes reasonable notice, generally only exceptional circumstances will support a notice period in excess of 24 months: see Lowndes at para. 11 and Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512 at paras. 31-33.
[77] Looking at the relevant factors in the context of this case, at the time of her termination Ms. Miranda: (a) worked as a medical assistant/office administrator; (b) had been employed by RSL for 35 years; (c) was 58 years old; and (d) had a health sciences certificate obtained in 1982, had only worked for one employer for 35 years, had limited computer skills, and was near the end of her career.
[78] I have considered all of the cases referred to by Ms. Miranda in support of her position with respect to the length of the notice period. Most of the cases she relies upon involved employees in managerial or supervisory positions, which was not the case for her position. While the factor of the character of the employment is declining in importance, it is still a factor. In addition, it is my view that, contrary to the situation in a number of the cases upon which she relies, Ms. Miranda’s skills as a medical assistant and office administrator are not so specialized as to be “non-transferable”. There was no or insufficient evidence before me regarding Ms. Miranda’s computer and other skills and the reasons underlying her difficulties in finding alternative employment.
[79] As it has been noted in some cases, the lengthier the service, the older the employee will be, the more likely it will be for the employee to have had only one employer, and the more likely the notice period will be extended. Given that length of service and age are traditional factors that are considered, lengthy service cannot, without more, be equated with exceptional circumstances. See Lalani v Canadian Standards Association, 2015 ONSC 7634 at para. 25.
[80] In my view, there are no exceptional circumstances in this case to support a notice period in excess of 24 months. However, Ms. Miranda’s age and length of service warrant significant consideration. In light of the foregoing, after reviewing the relevant case law and considering the relevant factors, I find the appropriate notice period to be 22 months.
3. Mitigation
[81] Ms. Miranda submits that RSL has not met its onus of proving that she failed to mitigate her damages by not diligently seeking alternative employment. She points out that she made considerable efforts to find alternative employment and applied to hundreds of positions. Further, Ms. Miranda argues that while RSL asked her to return to work, the terms being offered (single random shifts) were substantially different from the three-day schedule that she had while working at RSL prior to her termination.
[82] RSL’s position is that Ms. Miranda had an obligation to mitigate her damages by returning to work for RSL because, by doing so, Ms. Miranda would not be entering an atmosphere of hostility, embarrassment or humiliation.[^3]
a. Applicable legal principles
[83] To mitigate any damages arising from dismissal, an employee must make reasonable efforts to seek comparable employment. It remains the employer’s burden to prove the employee’s failure to do so. The employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found. “Comparable employment” does not mean “any employment” but comprehends employment comparable to the dismissed employee’s employment with his or her former employer in status, hours and remuneration. See Evans v. Teamsters Local Union No. 31, 2008 SCC 20 at para. 30 (“Evans”), Dussault v. Imperial Oil Limited, 2019 ONCA 448 at para. 5 and Carter v. 1657593 Ontario Inc., 2015 ONCA 823 at para. 6.
[84] Employees who are constructively or wrongfully dismissed may be required to mitigate their damages by returning to work for the dismissing employer. Where the employer offers the employee a chance to mitigate damages by returning to work for them, the central issue is whether a reasonable person would accept such an opportunity. See Evans at para. 30.
[85] In Evans, the Supreme Court of Canada discussed when dismissed employees should be required to mitigate their damages by returning to work for the dismissing employer. Employees are only required to do so where the salary offered is the same, the working conditions are not substantially different or the work demeaning, and the personal relationships involved are not acrimonious. Other relevant factors that need to be considered include the history and nature of the employment, whether or not the employee has commenced litigation, and whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left. An objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer. The critical element is that an employee should not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation, which is a factor that must be at the forefront of the inquiry into what is reasonable. As noted by the Supreme Court of Canada, this kind of mitigation requires a situation of mutual understanding and respect, and a situation where neither the employer nor the employee is likely to put the other’s interests in jeopardy. See Evans at paras. 30, 33.
[86] While the commencement of legal proceedings can have an effect on the relationship between the parties and should be taken into account in each case, starting an action does not by itself relieve the employee from the duty to mitigate their damages. The entirety of the situation must be evaluated in every case. See Evans at para. 46.
b. Application to this case
[87] In my view, Ms. Miranda was not required to mitigate her damages by returning to work for RSL because the compensation and working conditions offered by RSL were substantially different from her prior compensation and working conditions. As stated above, I agree with Ms. Miranda’s characterization that RSL offered her single shifts. Even if I were to accept Dr. Sharma’s evidence that RSL’s offer to Ms. Miranda was to come back on a recurring basis every Wednesday, the compensation and working conditions offered by RSL would still be substantially different from Ms. Miranda’s prior compensation and working conditions. Compensation for one day or eight hours per week is substantially different than compensation for three days or twenty-four hours per week (on average). The annual compensation for a position of eight hours per week at a salary of $34/hour is $14,144. This is substantially less than the compensation reflected on Ms. Miranda’s T4s, as set out in paragraph 13 above. What RSL offered to Ms. Miranda does not qualify as “comparable employment”.
[88] I also find that RSL did not demonstrate that Ms. Miranda had failed to make reasonable efforts to find work and that work could have been found during the notice period. RSL did not adduce any evidence on the issue of mitigation and its cross-examination of Ms. Miranda did not elicit the required evidence.
4. Quantum of damages
[89] At the time of her termination, Ms. Miranda earned $34 per hour and worked three days per week at approximately 24 hours per week. This was her evidence and, in addition, this allegation in the Statement of Claim was admitted by RSL in its Statement of Defence. While there may have been weeks where, for some reason, Ms. Miranda worked less than 3 days per week, I conclude based on the evidence before me and RSL’s admission that, aside from the periods where Dr. Lilker was on vacation, Ms. Miranda was usually working three days per week at approximately 24 hours per week. This is confirmed, among other things, by Ms. Miranda’s ROE which shows that Ms. Miranda’s insurable hours often exceeded 48 hours on a bi-weekly basis. For some bi-weekly periods, her number of hours was slightly below 48 hours. For other periods, the number of hours was low, suggesting that these periods coincided with vacation periods.
[90] While I accept that Ms. Miranda was usually working three days per week at approximately 24 hours per week at a salary of $34 per hour, I find that it would not be appropriate to use only these figures to calculate Ms. Miranda’s damages, without taking into account the fact that she was on unpaid leave for a significant part of each year. Ignoring this fact would result in an inflated figure of damages.
[91] Based on Ms. Miranda’s T4s, her average annual income between 2014 and 2017 was $36,693.46.[^4] This is equivalent to an average monthly income of $3,057.79. Using this figure to calculate the pay that Ms. Miranda should have received during a 22-month notice period, the total amount of damages is $67,271.38.
C. CONCLUSION
[92] Accordingly, I order the following:
a. a declaration that the Plaintiff was constructively dismissed from her employment with RSL;
b. damages in the amount of $67,271.38; and
c. prejudgment and postjudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.
[93] The Plaintiff also seeks damages for vacation pay that accrued during the applicable statutory notice period under the ESA. No specific submissions were made on this point. If the parties disagree regarding any amount owing under the ESA, they should contact my assistant to schedule a case conference.
[94] If costs cannot be agreed upon, the Plaintiff shall deliver submissions of not more than three pages (double-spaced), excluding the bill of costs, by November 10, 2022. The Defendant shall deliver its responding submissions (with the same page limit) by November 24, 2022. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.
Vermette J.
Released: October 27, 2022
[^1]: I note that, aside from the shift on March 28, 2018, there is no evidence before me that Ms. Miranda was asked to come to work at RSL at any other time prior to this e-mail.
[^2]: While Dr. Sharma stated in e-mails sent in the second half of March 2018 that Ms. Miranda would work for the same salary if she were to come back to work at RSL, I find that Dr. Sharma only adopted this position after Ms. Miranda sent her e-mail on March 8, 2018 in which she refused a lower salary ($23 per hour) and refused to be paid in cash “as this would be fraud.”
[^3]: While RSL complains that there is no evidence that Ms. Miranda has applied for a job since 2020, Ms. Miranda’s job search efforts after the end of the notice period are irrelevant to the issues before this Court. I also note that the COVID-19 pandemic started approximately 24 months after Ms. Miranda was dismissed.
[^4]: I do not include Ms. Miranda’s income for 2013 in the calculation of her average annual income because the income for that year is unusually low and is not representative. It may have been the year during which Dr. Lilker personally paid Ms. Miranda’s salary for 3-4 months.