Quesnelle v. Camus Hydronics Ltd., 2022 ONSC 6156

Court File and Parties

OSHAWA COURT FILE NO.: CV-21-913

DATE: 20221031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MICHAEL QUESNELLE

Plaintiff

– and –

CAMUS HYDRONICS LTD. and CLEAVER-BROOKS, INC

Defendants

COUNSEL:

Stephen J. Moreau, for the Plaintiff

Landon P. Young and Haadi Malik, for the Defendants

HEARD: September 2, 2022

REASONS FOR DECISION

CHARNEY J.:

Introduction

1The Plaintiff, Michael Quesnelle, brings this motion for summary judgment for damages for constructive dismissal from his employment with the defendant, Camus Hydronics Ltd. (Camus). The Defendant Cleaver-Brooks Inc. (Cleaver-Brooks) is the parent company of the defendant Camus. Cleaver-Brooks acquired Camus in 2016. Mr. Quesnelle alleges that Cleaver-Brooks is his co-employer.

2The Plaintiff seeks damages for twelve months base salary and employment benefits in lieu of reasonable notice.

3The Defendant agrees that this matter should proceed by way of summary judgment motion.

4There are few, if any, material facts in dispute, and both parties have filed affidavit evidence which has been subject to cross-examination. To the extent that there are any factual disputes, I have the same evidence that would be available to a trial judge and will be able to resolve any factual disputes using the powers set out in Rule 20.04(2.1) of the Rules of Civil Procedure.

5Wrongful dismissal claims are often well-suited to the summary judgment process: Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967, at para. 77; English v. Manulife Financial Corporation, 2019 ONCA 612, at para. 30; Arnone v. Best Theratronics Ltd., 2015 ONA 63, at para. 12. Given the amount of money at issue, the added expense of a trial proceeding is unwarranted. I agree with the parties that, in this case, summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.

Facts

6The Plaintiff was employed by the Defendants as a gas fitter specialist and heating, ventilation and air conditioning (HVAC) technician from March 10, 2014. He obtained a Gas Fitter 2 Certificate from Centennial College in 1985. Prior to being hired by the Defendant he was employed by Consumers Gas and its successor companies, Enbridge and Direct Energy, from 1992 to 2014.

7Mr. Quesnelle commenced employment with Camus in March 2014 after Cesare Ruscio and Mario Ruscio, Camus’ principals, made two attempts over four years to recruit him. He initially declined their offer of employment in 2010, but agreed to join in 2014, after Messrs. Ruscio promised to fully pay for a vehicle and its operating costs, including covering the cost of the Hwy 407 ETR toll road, for Mr. Quesnelle. This offer was very important to Mr. Quesnelle, since he lived in Oshawa and Camus was located in Mississauga.

8Mr. Quesnelle signed an employment letter on March 8, 2014, for the position of “Sales and Service Support”. The employment letter did not reference the vehicle benefit, but there is no dispute that the vehicle was part of his negotiated compensation and that Camus paid for the vehicle and its operating costs for seven years. Camus paid for all operating costs, even though the vehicle was used primarily for personal use, including commuting from his home in Oshawa to work in Mississauga, in addition to business use.

9In 2021 Mr. Quesnelle’s base salary was $103,000 annually, plus group benefits which cost Camus an additional $5,511 per year, and participation in a group RRSP where Camus contributed 4% of salary, or about $3,565 per year..

10The Defendants continued to pay for the vehicle, a Dodge RAM, and its operating costs until 2021, when Mr. Quesnelle reported to his supervisor that the vehicle needed to be replaced. He had driven it over 409,000 kms, and it was no longer roadworthy.

11Following the exchange of several emails, Keith Long, Cleaver-Brooks’ Corporate Director of Customer Experience, emailed Mr. Quesnelle on March 15, 2021 and informed Mr. Quesnelle that he had discussed the situation with Human Resources and that Camus would not be replacing the truck.

12Mr. Quesnelle replied, asking whether, if he purchased a new truck, the company would continue to cover the costs of the plates and insurance, and whether he should return the gas credit card and the transponder.

13Mr. Long responded on March 30, 2021 that Camus would “provide the insurance, toll, and card for the next month to allow for a transition”.

14After several more emails regarding the truck, Mr. Quesnelle emailed Mr. Long on April 12, 2021, stating:

However, because of the significant changes Cleaver-Brooks is proposing to my work, I feel I have no choice to set out my concerns. Bottom-line, I am being told to take a large pay cut and I cannot afford to do this.

15In this email Mr. Quesnelle estimated the cost of a new truck would be $55,000, plus $32,000 for annual operating costs (vehicle insurance, 407 ETR tolls, fuel, and maintenance). Paying the annual operating costs himself would amount to an approximately 30% pay cut. He took the position that if he was to continue working for Cleaver-Brooks they would have to purchase a new vehicle and continue to pay for the insurance, 407 ETR tolls and maintenance costs that they had paid since 2014.

16Mr. Long replied on April 13, 2021:

As we discussed on our call today, we will continue to honor your usage of the truck, fuel card, 407 ETR tolls, and insurance through the end of this month. On 5/1/2021, these benefits will stop. Additionally, we will again offer you the opportunity to purchase the existing vehicle for fair market value, but starting 5/1 if you choose not to purchase the vehicle please return the keys to Kasia.

Finally, as travel regulations permit, your future travel to and from job sites will be reimbursed based on the Cleaver-Brooks travel policy.

17On April 29, 2021, Mr. Quesnelle’s lawyer wrote to Mr. Long, advising that Mr. Quesnelle took the position that Camus’ refusal to continue to pay for a vehicle and its maintenance amounted to a reduction in his compensation of more than 30%, that this was constructive dismissal, and that Mr. Quesnelle resigned from his employment with Camus, effective May 14, 2021.

18Had Mr. Quesnelle not resigned from his employment, all terms and conditions of his employment except for Camus providing the truck and associated expenses would have remained the same.

19Mr. Quesnelle takes the position that he was “treated poorly” by Human Resources when he resigned. He complains, in particular, that on May 17, 2021, Camus Human Resources sent an email announcement to the other employees stating:

Please be advised that as of today May 17, 2020 Michael Quesnelle will no longer be a team member of Camus Hydronics Ltd.

During the transition all of Mike’s tasks will be handled by Keith Long, at the Corporate Service Department.

Please ensure that all correspondence and dealings associated with Mike’s services be directed to those contact persons noted above. On behalf of Camus I thank you in advance for your patients (sic) during this period of adjustment.

If you have any questions or concerns please come talk to me.

20At the time of his resignation from Camus, Mr. Quesnelle owned a residence in Oshawa on which he owed $175,592. His partner owned a house in Omemee, Ontario, which had a debt of $196,359. Mr. Quesnelle testified that without his job, he could not afford to maintain both the Oshawa and Omemee homes, so he and his partner decided to sell the Oshawa home.

21Mr. Quesnelle listed his home in Oshawa for sale on May 11, 2021, and sold it on May 16, 2021, two days after his resignation became effective. He and his partner moved to the Omemee property, approximately 70 km. north-east of Oshawa.

22Mr. Quesnelle commenced this action on June 1, 2021.

23The Defendants filed a Notice of Intention to Defend on June 16, 2021.

24On June 18, 2021, the Defendants offered to provide the Plaintiff with his old job back with the fully paid vehicle for one year. Mr. Quesnelle declined this offer because he had already sold his Oshawa home, and the commute from Omemee to Mississauga was approximately 90 minutes to two hours each way.

25The evidence provided by the Plaintiff indicates that the commute from his home in Oshawa to Camus in Mississauga was approximately one hour. If he took the 407 ETR the distance was 91.8 km, and the commute was between 55 minutes and 1 hour and 10 minutes. If he took Hwy 401, the distance was somewhat shorter – only 80 km.- but the commute would take between 50 minutes and 1 hour and 25 minutes. His move to Omemee means that he now lived approximately 150 km. from Camus, and this would add an additional 40 minutes to his commute (each way) whether he took the 407 ETR or the 401.

26Mr. Quesnelle also testified that he could not see himself “walking back into the office and face uncomfortable questions from all those who had been told he was no longer employed.”

27Following his termination, Mr. Quesnelle began to search for a new job in July 2021, after he moved to the Omemee residence. He also started a business as a fishing guide on or around June 15, 2021, but has not earned any profit from it yet.

28Mr. Quesenlle regularly looks for gas fitter, HVAC or related jobs within an 80 km. radius of his home. This search area captures the Kawartha Lakes region where his home in Omemee is located. This includes the City of Peterborough. He has applied for 13 positions in the Kawartha Lakes region, all of which he is over-qualitied for, but has not received any job offers or interviews.

Issues

29This case raises the following issues:

a. Was the Plaintiff constructively dismissed?

b. Is the termination clause in the Plaintiff’s employment contract enforceable?

c. If the termination clause is unenforceable, how long is the reasonable notice period?

d. Did the Plaintiff mitigate his damages?

e. How are damages to be quantified?

f. Is Cleaver-Brooks a common employer?

Analysis

Was the Plaintiff constructively dismissed?

30The Supreme Court of Canada summarized the concept of “constructive dismissal” in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, [2015] 1 S.C.R. 500, at paras. 30-31:

When an employer’s conduct evinces an intention no longer to be bound by the employment contract, the employee has the choice of either accepting that conduct or changes made by the employer, or treating the conduct or changes as a repudiation of the contract by the employer and suing for wrongful dismissal....

The burden rests on the employee to establish that he or she has been constructively dismissed. If the employee is successful, he or she is then entitled to damages in lieu of reasonable notice of termination.

31In Farber v. Royal Trust Co., 1997 CanLII 387 (SCC), [1997] 1 S.C.R. 846, at para. 34, Gonthier J. stated:.

A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship.

32In the present case, the Plaintiff argues that the employer’s unilateral cessation of the vehicle funding altered an essential term of his employment contract. Although the provision of a fully paid vehicle was not in his written contract, the evidence clearly indicates that it was a negotiated term of his compensation when he was first hired, and the employer continued to honour this term of employment for seven years. Accordingly, I find that the provision of the vehicle and its maintenance was a term of his employment.

33The cancelation of the vehicle and vehicle allowance was a significant change to the Plaintiff’s benefits package.

34As of May 2021, the Plaintiff’s base salary was $103,000. His other employment benefits were worth approximately an additional $9,000 per year.

35I accept the Plaintiff’s evidence that, even excluding the cost of the new vehicle, the vehicle benefit was worth approximately $30,000 per year. The Defendants’ own records indicate that in 2019 (the last full pre-COVID year) it paid $2,636 for vehicle insurance, $16,772 for 407 ETR tolls, $10,360 for fuel, and $2,332 for maintenance). This amount represented approximately 21% of Mr. Quesnelle’s total wage/benefit package. Having this benefit cancelled constituted a significant reduction in the Plaintiff’s total remuneration, which also constitutes constructive dismissal: Farquhar v Butler Brothers Supplies Ltd. (1988), 1988 CanLII 185 (BC CA), at p. 4; Maver v. Greenheat Energy Corporation, 2012 BCSC 1139, at para. 25; Ziten v Sadie Moranis Realty Corporation, 2015 ONSC 7987, at para. 32; Drake v. Blach, 2012 ONSC 1855, at para. 23; Pavlis v. HSBC Bank Canada, 2009 BCSC 498, at paras. 52 and 53.

36If the cost of leasing a vehicle is added, the evidence indicates that this would amount to an additional $6,000 - $12,000 per year, depending on the model leased. In my view, the actual value of the 2014 truck driven by Mr. Quesnelle is not relevant to this analysis. Mr. Quesnelle was never given ownership of the truck; the truck was owned by Camus. Even if the truck had reached the end of its life and was worthless by 2021, Mr. Quesnelle’s employment contract required Camus to provide him with a vehicle in addition to vehicle maintenance. Taken at its lowest, this benefit was worth an additional $6,000 (the approximate lowest cost of leasing a replacement vehicle). Assuming that the value of the vehicle alone was $6,000 per year, the addition of this benefit would result in an approximately 24% reduction in his total remuneration ($103,000 + $9,000 + $30,000 + $6,000) – ($36,000).

37In my view, the Defendant’s unilateral cessation of the vehicle funding altered an essential term of the Plaintiff’s employment contract and constituted constructive dismissal.

38I do not doubt that Camus had valid business reasons for wanting to terminate the vehicle benefit it had previously agreed to. As Camus explained, Camus initially provided Mr. Quesnelle with the truck for both work and personal use. During the first few years of his employment, Mr. Quesnelle’s work required him to drive regularly to clients’ premises. Over time his role evolved so that he was providing more technical support over the phone from Camus’ premises, so the need and use of the truck for work purposes declined. By 2021, Mr. Quesnelle was the only Sales and Support employee who was provided with a vehicle by Camus. The other employees were paid mileage to compensate them for the use of their own vehicle in their employment. From Camus’ perspective, it made sense to transition Mr. Quesnelle to the same compensation package as the other Sales and Support employees.

39While this was a valid business decision, it was still a significant change to the Plaintiff’s benefits package and constituted constructive dismissal. Camus was free to make this change, but only after giving the Plaintiff reasonable notice. Their decision to cancel the vehicle package at the end of April 2021 was made on just one month’s notice (Mr. Long’s email advising Mr. Quesnelle of this decision was sent on March 30, 2021).

Is the termination clause in the Plaintiff’s employment contract enforceable?

40The termination clause in Mr. Quesnelle’s employment contract states:

During your Probation Period and afterwards, you will be entitled only to notice of termination, termination pay and/or severance pay as required by the Ontario Employment Standards Act.

41On the facts of this case, the Employment Standards Act, 2000, S.O. 2000, c. 41, (ESA) required the Defendant to provide the Plaintiff with the following:

1. One week of notice or pay in lieu of notice per year of service capped at eight total weeks (ss. 57, 60(1)(a), 61(1)(b)); plus

2. One week of severance pay per year of service capped at 26 weeks (ss. 63(1), 65(1); plus

3. Continuation of benefit plan contributions in order to maintain the employee’s benefits until the end of the notice period (s. 60(1)(c))

See: Andros v. Colliers Macaulay Nicolls Inc., 2019 ONCA 679, at para. 14.

42The Defendant argues that if Mr. Quesnelle was constructively dismissed, he is entitled only to 7.2 weeks’ severance pay pursuant to s. 65(1) of the ESA, which provides that minimum severance pay is calculated on the basis of one weeks’ salary for each year employed.

43The Defendant argues that Mr. Quesnelle would not be entitled to notice of termination under s. 57 of the ESA because he effectively had more than 7 weeks’ notice. This argument is based on the Defendant’s position that Mr. Quesnelle was advised on March 15, 2021 that Camus would not be replacing the truck.

44I pause here to point out that I do not accept the March 15, 2021 correspondence as the notice that resulted in the constructive dismissal of the Plaintiff. As of that date, the Plaintiff was advised only that the truck would not be replaced. It was not until March 30, 2021 that the Plaintiff was advised that Camus would only pay the related expenses involving his fuel card, 407 ETR tolls, and insurance “for the next month to allow for a transition”. It was the cumulative total of all of these factors that resulted in the Plaintiff’s constructive dismissal, and these were not communicated to the Plaintiff until March 30, 2021. On this basis, the Plaintiff was given only one month’s notice of termination. He continued to work until May 14, 2021, which extends this notice period to approximately six weeks.

45The Plaintiff was entitled to seven weeks’ notice of termination or pay in lieu of notice pursuant to ss. 57(g) and 61 of the ESA.

46The Plaintiff argues that the termination clause in the employment contract is unenforceable because it permits the employer to end the employment relationship by providing him with only one or two of the three items they must provide to comply with the minimum requirements of the ESA.

47The Plaintiff’s argument is based on the use of the terms “only” and “and/or” in the termination clause: “you will be entitled only to notice of termination, termination pay and/or severance pay as required by the Ontario Employment Standards Act.” [Emphasis added]. The Plaintiff argues that this creates an ambiguity. It appears to permit the employer to provide pay without the continuation of benefits and suggests that the employer can choose to pay either termination pay or severance pay, but may not be required to pay both.

48The law relating to the validity of termination clauses in employment agreements was summarized by the Ontario Court of Appeal in Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, at paras. 15 – 16:

At common law, an employee hired for an indefinite period can be dismissed without cause, but only if the employer gives the employee reasonable notice. In Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, [1992] S.C.J. No. 41, at p. 998 S.C.R., the Supreme Court characterized the common law principle of termination of employment on reasonable notice “as a presumption, rebuttable if the contract of employment clearly specifies some other period of notice”. [page 486]

Ontario employers and employees can rebut the presumption of reasonable notice by agreeing to a different notice period. But their agreement will be enforceable only if it complies with the minimum employment standards in the ESA. If it does not do so, then the presumption is not rebutted, and the employee is entitled to reasonable notice of termination.

49In this regard, Courts are very strict in their interpretation of termination clauses. As the Court stated in Wood, at para. 21: “Contracting out of even one of the employment standards and not substituting a greater benefit would render the termination clause void and thus unenforceable”. If the termination clause is unclear or ambiguous in its compliance with the minimum terms of the ESA, it will be void and unenforceable: Wood, at para. 28; Rossman v. Canadian Solar Inc., 2019 ONCA 992, at para. 18: “[I]f a provision within a termination clause conflicts with the minimum standards prescribed by the ESA, it is not open to this court to simply strike out the offending provision. In that situation, the entire termination clause is void”.

50The policy rationale for this strict approach was explained by the Court in Wood, at para. 28:

Termination clauses should be interpreted in a way that encourages employers to draft agreements that comply with the ESA. If the only consequence employers suffer for drafting a termination clause that fails to comply with the ESA is an order that they comply, then they will have little or no incentive to draft a lawful termination clause at the beginning of the employment relationship…

A termination clause will rebut the presumption of reasonable notice only if its wording is clear. Employees should know at the beginning of their employment what their entitlement will be at the end of their employment…

51The wording of the termination clause considered in Wood was, in important respects, similar to the wording of the clause in this case. The clause in Wood provided for “notice of termination or pay in lieu thereof” and stated: “the Company shall not be obliged to make any payments to you other than those provided for in this paragraph”. The Court summarized the employer’s obligations under the ESA as follows (at para. 21):

In summary, Deeley’s statutory obligations to give Wood at least eight weeks’ notice of termination of her employment, to continue its contributions to her benefit plans during the notice period, and to pay her severance pay of eight and one-third weeks' salary were employment standards. Deeley was precluded from contracting out of any of these employment standards unless it substituted a greater benefit for Wood. Contracting out of even one of the employment standards and not substituting a greater benefit would render the termination clause void and thus unenforceable, in which case Wood would be entitled to reasonable notice of termination of her employment at common law.

52The Court concluded that the wording used in the termination clause was not consistent with the ESA, stating, at paras. 37 and 38:

Wood’s compensation included Deeley’s contributions to her two benefit plans. Under ss. 60 and 61 of the ESA, Deeley was required to continue to make those contributions during the notice period. Its obligation to do so was an employment standard under the ESA. Yet the termination clause's wording excludes and therefore contracts out of that obligation.

The termination clause gives Wood two weeks’ notice of termination or pay in lieu thereof for every year or partial year of employment. It says nothing about benefit contributions. The clause then goes on to state that on termination, “the Company shall not be obliged to make any payments to you other than those provided for in this paragraph”, and “the payments and notice provided for in this paragraph are inclusive of your entitlement to notice, pay in lieu of notice and severance pay pursuant to the [ESA]”. On its plain wording, the clause excludes Deeley’s obligation to contribute to Wood’s benefit plans during the notice period.

53Finally, the Court rejected the employer’s position that the word “pay” was broad enough to include both base salary and benefits, stating, at para. 40:

This argument cannot succeed. An employer and an employee can contract out of common law reasonable notice, but they must do so in clear and unambiguous language. The word “pay” does not clearly include both salary and benefits. At best for Deeley, the word is ambiguous. I would therefore interpret “pay” as referring only to salary or wages, not to benefits. That interpretation is consistent with the consideration I referred to earlier: where the language of a termination clause is unclear or can be interpreted in more than one way, the court should adopt the interpretation most favourable to the employee…

54The Plaintiff argues that the same analysis must apply in this case. The termination clause refers to “only…termination pay and/or severance pay”, and makes no reference to benefits.

55In the absence of the word “only” the termination clause would be silent on the provision of benefits and would therefore comply with the requirements of the ESA: Wood at paras. 55 and 56. It is the inclusion of the word “only” that restricts the employer’s obligation to pay, and therefore distinguishes this provision from the termination clause permitted by the Court of Appeal in the case of Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA): Wood, at para. 57.

56In addition, because Mr. Quesnelle worked at Camus for more than five years (ESA s. 64(1)), Camus was required to pay him severance pay pursuant to the formula set out in s. 65(1) of the ESA. But the termination clause provided that Mr. Quesnelle was entitled to “termination pay and/or severance pay as required by the Ontario Employment Standards Act.”

57It is not clear why the word “or” was added to this clause. There are no circumstances under the ESA in which the employer could pay either termination pay “or” severance pay. If the employee qualifies for severance pay, it must be paid. If the employee does not qualify for severance pay, the employer does not have to pay it.

58I accept the Plaintiff’s position that the addition of the phrase “and/or” created an ambiguity: on one interpretation of the clause, it could be suggested that the employer could choose to pay either termination pay or severance pay, but was not required to pay both. Since this is an employment agreement, the existence of this ambiguity voids the termination clause.

59Accordingly, I conclude that the termination clause in Mr. Quesnelle’s employment agreement is void and unenforceable, and I must consider the Plaintiff’s right to reasonable notice at common law.

If the termination clause is unenforceable, how long is the reasonable notice period?

60The principles for determining the appropriate notice period are to be determined by taking into account factors such as the character of the employment, the length of service, the age of the employee, the availability of similar or comparable employment, and the experience, training and qualifications of the employee (Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.J.), at p. 145; Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 168 D.L.R. (4th) 270 (Ont. C.A.), at p. 293; Honda Canada Inc. v. Keays, [2008] 2 SCR 362, 2008 SCC 39, at paras. 28-32; Lopez-Gonzalez v. Reliance Legal Services Ltd., 2022 ONSC 2255, at para.14).

61In Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967, Perell J. stated, at paras. 100 – 103 (citations omitted):

The character of employment factor tends to justify a longer notice period for senior management employees or highly skilled and specialized employees and a shorter period for lower rank or unspecialized employees.

Generally speaking, the longer the duration of employment, the longer the reasonable notice period.

Generally speaking, a longer notice period will be justified for older long-term employees, who may be at a competitive disadvantage in securing new employment because of their age.

Economic factors such as a downturn in the economy or in a particular industry or sector of the economy that indicate that an employee may have difficulty finding another position may justify a longer notice period.

62No one factor should be given disproportionate weight, and more recent jurisprudence indicates that the character of employment is a factor of declining importance in the Bardal analysis: Arnone v. Best Theratronics Ltd., 2015 ONCA 63, at para. 11.

63Determining the period of reasonable notice is an art not a science: McNevan v. AmeriCredit Corp. (2008), 2008 ONCA 846, at para. 34, citing Minott v. O’Shanter Development Co. (1999), 1999 CanLII 3686 (ON CA), 42 O.R. (3d) 321 (C.A.), at pp. 343–44. It involves the court weighing and balancing a catalogue of relevant factors, with no two cases being identical.

64The Plaintiff takes the position that the reasonable notice period was twelve months, the Defendant takes the position that it was not more than six months.

65Mr. Quesnelle was 55 years old when he was constructively dismissed after seven years of service. A longer notice period is justified for older employees, who may be at a competitive disadvantage in securing new employment due to their age: Lopez-Gonzalez, at para. 14.

66Mr. Quesnelle obtained a Gas Fitter 2 Certificate from Centennial College in 1985. He had been working in the energy and utilities industry for approximately 38 years. He was employed by the Defendants as a gas fitter specialist and heating, ventilation and air conditioning (HVAC) technician, in the position of “Sales and Service Support”. He was not a senior level manager, but was a skilled employee.

67I do not accept the Plaintiff’s argument that Mr. Quesnelle was “induced” to leave his previous position. The evidence is that neither Cesare Ruscio nor Mario Ruscio of Camus knew what Mr. Quesnelle was earning at Direct Energy (his previous employer). The mere fact that they offered him a position at Camus does not, in my view, qualify as an “inducement”. There were no “guarantees” or assurances offered that might constitute an inducement: Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 SCR 701, at paras. 83-86; Firatli v. Kohler Ltd., 2008 CanLII 35266 (ON SC), at para. 27; Reiner v. Maritime Business College (2009) Ltd, 2016 NSSC 291, at para. 42.

68Moreover, the offer of employment included a probationary period, which is inconsistent with any inducement or promise of long term employment: Nagribianko v Select Wine Merchants Ltd., 2016 ONSC 490, at para. 43, aff’d on appeal, Nagribianko v. Select Wine Merchants Ltd., 2017 ONCA 540; Fraser v Canerector Inc., 2015 ONSC 2138, at para. 26.

69The Plaintiff also argues that the difficulty he has had in obtaining alternate employment since his termination is evidence of the unavailability of similar or comparable employment. In my view, this factor must be tempered by the fact that the Plaintiff moved away from the GTA to the Kawarthas in June 2021, and did not start looking for alternate employment until July 2021. I will return to this factor later when I consider mitigation, but I find that the Plaintiff’s decision to move to the Kawarthas and remove himself from the GTA job market made it more difficult for him to find comparable employment, and that the consequences of this decision should not be visited upon the employer.

70The Plaintiff has provided an appendix with a list of cases where employees of similar age and length of service were awarded 12 months’ notice. Most of these were senior managerial or executive employees, but others could more fairly be described as skilled employees. In some of these cases the length of notice was increased because the employer had wrongfully alleged that the employee was terminated for cause.

71The Defendant has provided an appendix with a list of cases where employees of similar age and length of service with some technical skills of were awarded 4 to 7 months’ notice. The lower end of that range is for general labourers with no particular skills or education.

72In my view, weighing the relevant aspects of the evidence, a reasonable range in this case is seven to eleven months (see: Menard v. The Centre for International Governance Innovation, 2019 ONSC 858, at paras. 109 -110; Filice v. Complex Services Inc., 2018 ONCA 625, at para. 44. In my view, a reasonable notice period given the circumstances of this case would have been 10 months.

Did The Plaintiff Mitigate His Damages?

73It is well established that in wrongful dismissal cases employees are obliged by law to mitigate the damages that flow from the wrongful dismissal by seeking an alternative source of income in the absence of a pre-determined fixed notice period or other agreement to the contrary: Bowes v. Goss Power Products Ltd., 2012 ONCA 425, at para. 24.

74The Defendant argues that the Plaintiff failed to mitigate his damages in two respects:

a. first, by refusing the Defendant’s June 18, 2021 offer to return to work at his previous job with the fully paid vehicle for one year,

b. second, by moving from his home in Oshawa to Omemee, where there were fewer jobs in his field.

75The law relating to the duty of the employee to mitigate was summarized in Lopez-Gonzalez, at para. 16:

The onus is on the defendant to establish a failure to mitigate. More particularly, the onus is on the employer to prove that the employee would likely have found a comparable position reasonably adapted to his or her abilities and that the employee failed to take reasonable steps to find that comparable position. In assessing the innocent party’s efforts at mitigation, the courts are tolerant, and the innocent party need only be reasonable, not perfect. [citations omitted]

76I will address each of the Defendants’ arguments in turn.

a. The refusal of the offer to return to work

77On June 18, 2021, Camus offered to re-employ Mr. Quesnelle to perform the same duties on the same terms and conditions of employment, including use of the truck or another suitable vehicle and reimbursement of 407 charges and other costs associated with the vehicle for a period of one year, until May 14, 2022. Camus also offered to pay Mr. Quesnelle for the salary lost from the date of his resignation (May 14, 2021) until his return to work, and to make a contribution of $2,500 for his legal expenses. The offer stated:

Camus would welcome Mr. Quesnelle back to work and he should understand there would be no animosity of ill will of any sort toward him as a result of his commencing the action. Camus has a high regard for Mr. Quesnelle’s ability, considered him to be a valued employee and was sorry to see him leave. I understand that our clients had a good working relationship and the only issue of disagreement between them was whether Camus would continue to provide Mr. Quesnelle with the truck.

78Mr. Quesnelle rejected the offer of re-employment because he had already sold his home in Oshawa and moved to Omemee, approximately 150 km. from Camus, and this would add an additional 40 minutes to his commute (each way) whether he took the 407 ETR or the 401.

79Mr. Quesnelle also testified that he could not see himself “walking back into the office and face uncomfortable questions from all those who had been told I was no longer employed.”

80In Evans v. Teamsters Local Union No. 31, 2008 SCC 20, at para. 30 the Supreme Court of Canada stated:

I do not mean to suggest with the above analysis that an employee should always be required to return to work for the dismissing employer and my qualification that this should only occur where there are no barriers to re-employment is significant. This Court has held that 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 (Red Deer College v. Michaels, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so “[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious”. (Mifsud v. MacMillan Bathurst Inc. (1989), 1989 CanLII 260 (ON CA), 70 O.R. (2d) 701, at p. 710). In Cox, the British Columbia Court of Appeal held that other relevant factors 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 (paras. 12-18). In my view, the foregoing elements all underline the importance of a multi-factored and contextual analysis. The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” (Farquhar, at p. 94), and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer (Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880), it is extremely important that the non-tangible elements of the situation - including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements - be included in the evaluation.

81The reasonableness of an employee’s decision not to mitigate is assessed on an objective standard: Evans, at para. 33.

82In order to trigger this form of mitigation, the employer is obliged to offer the employee a clear opportunity to work out the notice period after the employee has informed the employer that he is treating the change in his contract as constructive and wrongful dismissal: Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177, at para. 20; Dussault v. Imperial Oil Limited, 2018 ONSC 1168, at para. 58.

83Camus’ offer of June 18, 2021 clearly meets this criterion.

84“The offer of re-employment does not, however, change the fact that the employer wrongfully breached the contract of employment. It can only serve to provide an opportunity for the employee to mitigate his loss resulting from the breach, in whole or in part, by accepting the offer if, objectively viewed, it is reasonable to do so”: Hooge v. Gillwood Remanufacturing Inc., 2014 BCSC 11, at para. 89.

85The fact that Mr. Quesnelle had already commenced litigation when the offer of re-employment was made is a factor that must be considered, but is not determinative and does not preclude a finding that a reasonable employee in Mr. Quesnelle’s position should have accepted the offer of re-employment: Gent v. Strone Inc., 2019 ONSC 155, at para. 51.

86In this case, I have concluded that Mr. Quesnelle was constructively dismissed on March 30, 2022, and resigned from his employment on May 14, 2022, in response to that constructive dismissal. Once he resigned, he no longer had a reason to live within commuting distance of Camus’ headquarters in Mississauga, and, subject what I say below when I consider the question of mitigation more generally, he was free to move.

87Had Mr. Quesnelle not yet moved to Omemee, he would have been obliged to accept Camus’ offer of re-employment in mitigation. But Camus’ offer simply came too late in the game. Mr. Quesnelle was not obliged to remain in his Oshawa home after May 14, 2021 in the hope that he might one day receive an offer of re-employment from his former employer.

88Mr. Quesnelle stated that he could not see himself “walking back into the office and face uncomfortable questions from all those who had been told I was no longer employed.”

89In my view, a reasonable person in Mr. Quesnelle’s position would not have found this situation embarrassing or humiliating. Camus’ offer of re-employment was effectively a complete capitulation on their part, and Mr. Quesnelle could have simply returned to work and, if any questions were asked, explained that he returned because the employer agreed to all of his conditions. There was no evidence of any animosity between Mr. Quesnelle and any of his supervisors or other employees. I reject the suggestion that the May 17, 2021 email sent by Camus Human Resources to inform the other employees that Mr. Quesnelle was no longer working at Camus was in any way “humiliating” or indicative of poor treatment by Camus. Having considered the factors set out in the Evans case, I am of the view that a reasonable individual in Mr. Quesnelle’s circumstances would not have concluded that returning to work would be too embarrassing, humiliating, and/or degrading.

90The evidence indicates that the only issue of disagreement between the parties was whether Camus would continue to provide Mr. Quesnelle with the truck, and that they otherwise had a good working relationship. The June 18, 2021 offer was to re-employ Mr. Quesnelle to perform the same duties on the same terms and conditions of employment prior to the constructive dismissal. The offer proposed to remedy the only area of disagreement between the parties. But for the fact that Mr. Quesnelle had already moved, the offer of re-employment would have been accepted by a reasonable person in his circumstances.

91Accordingly, I am of the view that a reasonable person in Mr. Quesnelle’s circumstances would not have concluded that returning to work would be too embarrassing, humiliating, and/or degrading.

92However, I am also of the view that a reasonable person could consider the commute to be too long and too far. An additional 40 minutes per commute (80 minutes per day) when the commute is already around one hour each way, is one that a reasonable person could decline: Maasland v City of Toronto, 2015 ONSC 7598, at para. 41, aff’d . Maasland v. Toronto (City), 2016 ONCA 551, at paras. 12 and 13.

b. The move from Oshawa to Omemee

93While an employee may not be required to seek new employment far from home in order to mitigate his/her losses, in all such cases I have reviewed the employee continued to live in the same location after he/she had been dismissed. The cases indicate that an employee with ties to a particular community may not be required to look for jobs outside that community in order to mitigate his/her losses. This, of course, may depend on the distance involved, the nature of the employment at issue and other personal/family factors. See the discussion of this issue and the cases reviewed in Schalkwyk v. Hyundai Auto Canada Inc., 1995 CanLII 7294 (ON SC), at paras. 34 - 66. See also: Welch v Ricoh Canada Inc., 2017 NSSC 174, at para. 67; MacKinnon v. Acadia University, 2009 NSSC 269, at paras. 120 - 122.

94The present case is somewhat unique in that Mr. Quesnelle moved from his Oshawa residence to a different community within a month of his final day at Camus, and he did not begin to search for work until after that move. When working at Camus, the Plaintiff lived within the GTA (which includes Mississauga, Toronto, York Region and Oshawa); after leaving Camus he relocated to his cottage in Omemee in the Kawarthas. As a result of this re-location, he has not looked or applied for any jobs within the GTA.

95Camus’ evidence is that had Mr. Quesnelle remained in Oshawa there would have been significantly more job opportunities – 40 or more - available within an 80 km. search radius. I accept this evidence.

96Given his financial circumstances following his dismissal from Camus, Mr. Quesnelle had to choose between his home in Oshawa and his partner’s home in the Kawarthas. Mr. Quesnelle effectively decided to move away from the GTA job market to an area with fewer employment opportunities. In my view, Mr. Quesnelle’s decision to move from Oshawa to Omemee reduced his ability to mitigate his damages. This was a personal decision, but the employment consequences of that decision should not be visited upon Camus.

97I appreciate that this conclusion appears to be inconsistent with my previous decision that Camus’ June 18, 2021 offer of re-employment came too late, and that Mr. Quesnelle was not obliged to accept the offer if it meant an additional 80 minutes of commuting time per day. In my view, however, there is a difference between Mr. Quesnelle’s decision to move away from a specific employer, and his decision to move away from a particular job market. Once he was dismissed by Camus, there was no reason for Mr. Quesnelle to remain living within a one hour drive of that specific employer. But, if he intended to look for work in the HVAC field, a reasonable person would not move away from the GTA.

98I therefore accept the Defendant’s argument that the Plaintiff failed to mitigate his damages by moving from Oshawa to Omemee, where there were fewer jobs in his field, and restricting his job search to the Kawarthas. This failure is compounded by the fact that he waited two months (until July 2021) before he began to look for alternative employment. While several cases have concluded that employees may need some transitional time to deal with the stress of losing their job, Mr. Quesnelle was able to start a business as a fishing guide on or around June 15, 2021.

99This is not a complete failure to mitigate, but I find that, given these factors, the notice period for which the Plaintiff is entitled to damages should be reduced by 30%, to a total of 7 months.

Quantification of Damages

100The Court of Appeal described the principles applicable to awarding damages in wrongful dismissal cases in Paquette v. TaraGo Networks Inc., 2016 ONCA 618 (C.A.), at para. 16 (citations omitted):

The basic principle in awarding damages for wrongful dismissal is that the terminated employee is entitled to compensation for all losses arising from the employer’s breach of contract in failing to give proper notice. The damages award should place the employee in the same financial position he or she would have been in had such notice been given… In other words, in determining damages for wrongful dismissal, the court will typically include all of the compensation and benefits that the employee would have earned during the notice period…

101The parties are in agreement with respect to the quantification of most of the damages. Their primary area of disagreement relates to the calculation of the value of the motor vehicle benefit.

102Mr. Quesnelle earned an annual salary of $103,500, or $8,625 per month. Camus also provided matching RRSP contributions of 4% of base salary, which amounts to $297.08 per month. Camus also paid $5,511.72 per year in benefits premiums, which amounts to $459.31 per month. There is no dispute regarding any of these amounts. On this basis, damages should be calculated on the basis of $9,381.33 per month. Since Mr. Quesnelle did have six weeks’ working notice (he resigned his employment on May 14, 2021, six weeks after receiving notice that Camus would no longer pay for the vehicle and its costs) he is entitled to a further 5.5 months’ notice, which equals $51,597.

103The Plaintiff also argues that he should be awarded for the loss of the company vehicle, which, in the last 3 – 4 years was used almost entirely for personal use, which included his approximately 180 km. round trip daily from his residence in Oshawa to Camus’ headquarters in Mississauga. He also used the vehicle on weekends to commute from his residence in Oshawa to his cottage in Omemee, where he moved when his employment ended. The Plaintiff argues that the damages for the loss of the company vehicle should be assessed by calculating the percentage of the employee’s personal use and allocating damages only for the personal use. Similarly, if an employer pays for the vehicle’s insurance and related expenses, the employee should be awarded an amount in proportion to his personal use: Lefebvre v. Beaver Road Builders Ltd., 1993 CarswellOnt 958, at para. 60.

104The Plaintiff contends that damages for the loss of the company vehicle should therefore be calculated at a very high percentage of (a) the $32,101.81 in annual expense costs, plus (b) either $6,000 for an annual lease or $12,500 to annualize the purchase price of a new vehicle.

105The Defendant agrees that damages awarded in lieu of notice should include something for the company vehicle, and that this should be based on the percentage of Mr. Quesnelle’s personal use of the vehicle. The “personal use” should not, however, include Mr. Quesnelle’s usage of the vehicle to commute to and from work, since he has not been commuting to work since May 14, 2021: Webster v. British Columbia Hydro and Power Authority, 1990 CanLII 290 (BC SC). In addition, there is no evidence that the Plaintiff used the 407 for any purpose other than his commute to work, and no evidence that he has either taken or had any need to take the 407 ETR since his resignation from Camus. That expense should, therefore, not be included in the calculation of his damages. To include past payments for 407 charges in an assessment of pay in lieu of notice would be to award damages for something that Mr. Quesnelle did not suffer any loss for.

106The Defendant points out that Mr. Quesnelle declared in an Income Tax form entitled “Automobile Benefits Form – Employee Declaration Employer-owned Automobile for year 2020” that his total usage of the truck in 2020 was 40,000 km, of which he declared that 39,300 km (98.25%) was for business, including his commute. These numbers were used in a form called “Automobile Benefits Online Calculator” to calculate the taxable benefit to Mr. Quesnelle for the use of the truck, which Mr. Quesnelle claimed was $420.23 per year. On cross-examination Mr. Quesnelle stated that he did not keep a log of his usage of the truck, and that the 39,300 km number was a guess based on the number of kilometers on the vehicle at the time.

10739,300 km works out to about 220 days of commuting at 180 km per day (180 X220= 39,600), so this appears to be a reasonable estimate.

108The difference between Mr. Quesnelle’s estimate in this case – that he used the vehicle primarily for personal use – and his estimate on his income tax form – that he used the vehicle primarily for business – is that he classified his 180 km daily commute as personal use for the purposes of this case, and as a business expense for the purposes of his income tax. Without commenting on whether he was correct to do so for the purposes of the Income Tax Act, it is my view that the commute must be classified as a business expense for the purposes of this case, because that expense ended once he left his employment with Camus.

109The Defendant argues that based on the lack of any specific evidence to the contrary, the value of the vehicle should be based on the taxable benefit claimed by the Plaintiff, which is $420.23 per year. The same percentage should be used for the value of the operating costs, which should only include Mr. Quesnelle’s non-commuting personal use. Based on this formula, the non-commuting personal usage would be $239.92 per year. The total value of the car and operating costs would accordingly be $660.15 per year or $55 per month for the purposes of assessing pay in lieu of notice.

110In my view, some of the expenses related to the vehicle should be calculated at 100% regardless of the percentage of personal or business use. The Plaintiff had the vehicle at his disposal for any personal use he wanted to make of it. From his perspective, the availability of that vehicle meant that he did not have to purchase his own vehicle, and so, as an employment benefit, it was worth 100% of the vehicle’s value to him. Similarly, the employer covered the cost of Mr. Quesnelle’s automobile insurance. Had they not done so, he would have had to fund his own insurance at 100% of the cost. That was the value of the benefit to Mr. Quesnelle.

111Other aspects of the benefit were directly related to Mr. Quesnelle’s use of the vehicle for business purposes, which, for the purpose of this analysis, includes his commute to work and back. 98.25% of the cost of fuel and vehicle maintenance were expenses that resulted directly from his employment. 100% of his 407 ETR expenses resulted directly from his employment. When he resigned from his job at Camus, these business-related expenses ceased, and he suffered no damages as a result of not having these expenses covered.

112With respect to the value of the vehicle, it must be remembered that the vehicle never belonged to Mr. Quesnelle. Accordingly, I conclude that the value of this benefit to Mr. Quesnelle was approximately $6,000 per year – the approximate cost of an annual lease - and not the $12,500 per year cost to annualize the purchase price of a new vehicle.

113Accordingly, I would calculate the value of the vehicle and its operating costs for the purposes of the quantification of damages in this case as follows:

a. leasing the vehicle - $6,000 per year at 100%

b. vehicle insurance - $2,636 per year at 100%

c. fuel - $10,360 per year at 1.75% = $181.30

d. maintenance - $2,332 per year at 1.75% = $40.81

e. 407 ETR tolls - $16,772 per year at 0% = 0

Total= $8,858.11 per year, or $738 per month.

114Again, on March 30, 2021, Mr. Quesnelle was given notice that Camus would stop the automobile benefit as of April 30, 2021. While Mr. Quesnelle worked until May 14, 2021, he was required to return the truck on April 30, 2021. As such, damages in lieu of notice for the loss of this employment benefit begin to run on April 30, 2021, which leaves 6 months to the end of the 7 month notice period, for a total of $4,428.

115Based on the foregoing, Mr. Quesnelle’s total damages for pay in lieu of notice equals $56,025.

Is Cleaver-Brooks a common employer?

116The Plaintiff argues that after Cleaver-Brooks purchased Camus in 2016, they effectively took on the role as Mr. Quesnelle’s employer even though Camus was listed as the employer on his T4 slips. Mr. Quesnelle argues that he was employed by both Cleaver-Brooks and Camus.

117The common employer doctrine was summarized by the Ontario Court of Appeal in O’Reilly v. ClearMRI Solutions Ltd., 2021 ONCA 385, at paras. 2 and 49 – 53 [citations omitted]:

This common law doctrine recognizes 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. However, and importantly, they will only have liability if, on the evidence assessed objectively, there was an intention to create an employer/employee relationship between the employee and those related corporations.

The common employer doctrine does not involve piercing the corporate veil or ignoring the separate legal personality of each corporation. It imposes liability on companies within a corporate group only if, and to the extent that, each can be said to have entered into a contract of employment with the employee…

Thus, consistent with the doctrine of corporate separateness, a corporation is not held to be a common employer simply because it owned, controlled, or was affiliated with another corporation that had a direct employment relationship with the employee. Rather, a corporation related to the 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 individual and the related corporation…

[T]he common employer question is one of contractual formation – did the employee and the corporation alleged to be a common employer intend to contract about employment with each other on the terms alleged? When such an intention is found to exist, no violence is done to the concept of corporate separateness because the corporation is held liable for obligations it has undertaken.

To determine whether the required intention to contract was present, the parties’ subjective thoughts are irrelevant. Nor need the intention necessarily have been reflected in a written agreement. The common law’s approach to contractual formation is objective; intention to contract can be derived from conduct. As the Supreme Court has stated in a similar common law contractual formation context, what is relevant is “how each party’s conduct would appear to a reasonable person in the position of the other party”…

A variety of conduct may be relevant to whether there was an intention to contract between the employee and the alleged common employer(s). As they bear upon this case, two types of conduct are important. One is conduct that reveals where effective control over the employee resided. The second is the existence of an agreement specifying an employer other than the alleged common employer(s).

118See also: Downtown Eatery (1993) Ltd. v. Ontario, 2001 CanLII 8538 (ON CA), at paras. 30 – 32.

119The Plaintiff argues that the record in this case points to direct control over the Plaintiff’s work by Cleaver-Brooks’ managers and a thorough level of corporate integration between Cleaver-Brooks and Camus. Since 2016, Mr. Quesnelle has reported only to and received directions and assignments from Cleaver-Brooks managers. Those Cleaver-Brooks managers, including Keith Long and Dennis Hettinger, were responsible for the decision to discontinue the vehicle coverage in his contract. Indeed, Keith Long and Dennis Hettinger both used emails with the “@CleaverBrooks.com” suffix. Mr. Quesnelle had a Cleaver-Brooks photo ID card with the Cleaver-Brooks logo. Cleaver-Brooks CEO and CFO were, respectively, Camus’ President and Vice-president and were directors of both companies. Cleaver-Brooks shared IT, payroll, finance, and software with Camus, and Camus’ main administrative matters were managed by Cleaver-Brooks. Cleaver-Brooks and Camus were both named as an insured on Mr. Quesnelle’s vehicle.

120Cleaver-Brooks argues that after it acquired Camus in 2016, Camus continued to operate as its own business, although the companies had common corporate support “at the most senior levels”. Mr. Quesnelle was paid by Camus, as indicated by his T4. Mr. Quesnelle’s email address had a “@CamusHydronics.com” suffix. These factors indicate that Cleaver-Brooks was not a common employer.

121In my view, the evidence supports the conclusion that effective control over Mr. Quesnelle’s employment resided with Cleaver-Brooks managers such that Cleaver-Brooks is properly found to be a common employer.

Conclusion

122For the foregoing reasons, summary judgment is granted in favour of the Plaintiff against both Defendants jointly and severally.

123This Court Orders that damages are payable to the Plaintiff in the amount of $56,025.

124The Plaintiff is entitled to pre and post-judgment interest at the rate prescribed by the Courts of Justice Act.

125If the parties are not able to agree on costs, the Plaintiff may file costs submissions of no more than 3 pages plus costs outline and any offers to settle within 20 days of the release of this decision, and the Defendants may file responding submissions within a further 15 days.