COURT FILE NO.: CV-20-00640523-0000
DATE: 20221107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROLINE CHIN
Plaintiff
– and –
2186531 ONTARIO INC. o/a BEAUTY EXPRESS CANADA INC.
Defendant
Jennifer Chan, for the Plaintiff
Emily Quail, for the Defendant
HEARD: October 31 – November 1, 2022
E.M. MORGAN J.
I. Introduction
[1] In this two-day trial, the Plaintiff sought damages for wrongful dismissal.
[2] The Plaintiff was an esthetician who worked part time at the Beauty Express Canada Inc. (“Beauty Express”) salon located inside The Bay store at Bloor and Yonge Streets, Toronto. She was terminated without cause in the latter half of 2019 and was given just over 11 weeks’ working notice.
[3] The Plaintiff’s T-4 slips show that for her last three years of employment she earned $12,892.07 in 2017, $20,416.88 in 2018, and $26,003.93 in 2019. In her testimony she indicated that prior to those years she had worked full time, but the record contains no documentary evidence of that or of what she earned at that time.
[4] The Plaintiff, who is otherwise described by her counsel as a meticulous record keeper, apparently has no tax slips or any other evidence of her pre-2017 earnings. Likewise, Beauty Express, who issued her paycheques every month and her tax reporting every year and had accountants prepare the relevant paperwork, apparently had a hard drive problem and has also retained nothing from prior to 2017.
[5] Both sides agree, however, that the Plaintiff worked for Beauty Express for 6 years – from 2013 to 2019. They also agree that from 1999 to 2013 she worked for a company called Premier Salons Ltd. (“Premier Salons”) at the same job, under the same management team, and, for much of that time, at the same location, as Beauty Express. Premier Salons went bankrupt in 2013, and Beauty Express was awarded by Hudson’s Bay Company the beauty salon franchise that operates inside the Bloor Street location of The Bay.
[6] The claim raises four issues of controversy between the parties: a) does the employment agreement between the parties limit the amount of pay in lieu of notice to which the Plaintiff is entitled? b) how long did the Plaintiff work for the Beauty Express or, perhaps, its predecessor Premier Salons? c) is the Plaintiff entitled to aggravated or punitive damages? and d) did Beauty Express discriminate against the Plaintiff on the basis of age? Each will be addressed in turn.
II. Analysis
a) The employment agreement
[7] As indicated, the Plaintiff began her employment with Beauty Express in 2013. She testified that she initially worked there on a full-time basis, but that her hours were gradually reduced to part time. She was not happy with that reduction and said so to a Beauty Express manager, Cynthia Williams, but took no further action and worked on a part time basis once that was implemented by her employer.
[8] On February 14, 2018, five years into her job with Beauty Express, the Plaintiff was approached by Ms. Williams in the middle of the workday and was presented with a document entitled “Employee Policies and Agreements”. Ms. Williams told her to sign and return the document before her shift ended. The document was several pages long. The Plaintiff speaks English as a second language, and although she was able to testify at trial without the aid of an interpreter, her command of the language is somewhat halting and incomplete.
[9] The Plaintiff testified that she did not have a chance to read the document carefully as she was busy with customers. She did notice, however, that the proposed agreement stated that she would not have a guaranteed number of hours each week. That concerned her, as she had already expressed her disturbance at having had her hours reduced over the previous several years.
[10] The document handed to her by Ms. Williams also contained a termination clause, as follows:
Termination Policy – You hereby agree that the Company may terminate your employment at any time without cause and you shall have no claim against the Company for any termination pay and/or severance pay, whether under the applicable provincial legislation or under the common law provided the Company provides you with that length of notice or pay in lieu of notice, and severance pay, if any, to which you are entitled under the applicable provincial Employment Standards Act. Additionally, you hereby agree that the Company may temporarily lay you off as outlined in the applicable provincial Employment Standards Act and you shall have no claim against the Company for any termination pay and/or severance pay, whether under the applicable provincial legislation or under the common law provided that the Company recalls you back to your position within the guidelines specified under the applicable provincial Employment Standards Act. Additionally, you hereby expressly agree that the maximum amount of notice, or pay lieu of notice, and severance pay to which you will be entitled in the event of your termination without cause shall be limited to that amount of notice or pay or pay in lieu of notice, and severance pay if any, to which you are entitled under the applicable provincial Employment Standards Act. In addition, all company benefits, including medical, dental, life disability, vacation, and any other company benefits will continue through the severance and notice period. If you are terminated for cause, you understand and agree that you will not receive any notice or pay in lieu or severance pay. Cause for this purpose includes, but is not limited to, such things as unsatisfactory performance, dishonesty, insubordination and serious misconduct, all as determined in the sole discretion of the Company. You hereby acknowledge that you have been advised of your right to seek independent legal advice in connection with the signing of this employment contract.
[11] The Plaintiff explained in her testimony that she wanted to take the document home to review it, but did not feel like she could do so without causing herself trouble at work. She testified that she complained to Ms. Williams that the terms of the proposed new agreement did not appear to conform with her previous employment arrangement, but Ms. Williams was unreceptive. She therefore signed it before the end of her shift, as Ms. Williams had requested. Ms. Williams was not called as a witness by the Defendant, and the one witness that the Defendant did call, Beauty Express’ president Brian Luborsky, was not part of this conversation and added nothing to the Plaintiff’s description of it.
[12] The Plaintiff did not receive independent legal advice prior to signing and, despite the fact that the agreement says that she had the opportunity to obtain such advice, she did not realistically have a chance of doing so. Further, it is abundantly clear that the Plaintiff received no consideration in return for signing the document.
[13] The courts have been clear that in assessing an employment agreement signed when there is already an existing employer-employee relationship, they must consider whether fresh consideration was given in exchange: Humphrey v. Mene, 2021 ONSC 2539. More specifically on point, the Court of Appeal has determined that a new notice provision in a contract is “a tremendously significant modification of the implied term of reasonable notice” and one that requires consideration flowing from the employer to support it: Braiden v La-Z-Boy Canada Limited, 2008 ONCA 464, at paras. 48-49.
[14] Absent fresh consideration awarded to an ongoing employee when signing an amended or new employee agreement, the termination provisions in that agreement will be void and unenforceable: Humphrey at para. 29. Under the circumstances, considering that there was neither consideration for the new agreement and its notice provision nor any effort to permit the Plaintiff to take the time and obtain the legal advice necessary to understand it, the Employee Policies and Agreements document is not enforceable.
[15] The Plaintiff is entitled to notice of termination in accordance with the common law. Specifically, the length of notice is not as set out in the Employment Standards Act, but rather it is to be calculated taking into account the Bardal factors – i.e. the character of the employment, the length of service, the age of the employee, and the availability of similar employment in view of the experience, training, and qualifications of the Plaintiff: Bardal v Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 DLR (2d) 140, at para 21 (Ont HCJ).
b) Years of employment
[16] The Plaintiff’s evidence is that her position at the Beauty Express salon, and at Premier Salons before that, was not as a hairdresser but rather as an esthetician. Beyond that, she provided little evidence as to what her job actually entails. I do not know the range of services she provided to clients, although I note that in 2003 her annual performance letter from Premier Salons described her as a “waxing specialist”. Neither the documentary record nor the testimony at trial indicates whether over the years her skills and services went beyond what this designation suggests to include more complex dermatological-related procedures that would require more training.
[17] The Plaintiff said nothing in her testimony about her training for this position other than that she has had roughly 20 years’ experience on the job. She did indicate for the record that she was 69 years old when she was terminated from her job in 2019. She also established to my satisfaction that following her termination she diligently looked for another position – seeking either part time or full-time work – for many months but with no success. She explained that her age, combined with the COVID pandemic, made the job search difficult and, ultimately, futile.
[18] As already indicated, while the Plaintiff agrees with the Defendant’s representative, Mr. Luborsky, that she was employed by Beauty Express for six years – from 2013 to 2019 – she states that this employer is the successor company to her immediately previous employer, Premier Salons. The Plaintiff testified that she never had notice of Premier Salons’ 2013 bankruptcy, and that the transition from one corporate employer to the other was so seamless that she did not know of the change until several months after the fact when the signage for the salon was changed. She kept her same chair, her same customers, her same manager, and, as far as she was concerned, her same employer and same job.
[19] Although the Plaintiff was unaware of it until several months after the fact, she does not dispute the fact that Premier Salons went bankrupt in 2013. Similarly, although again she was unaware of it until some time later, she does not dispute the fact that Beauty Express took over the salon as her new employer in 2013. Plaintiff’s counsel confirmed in her oral submissions that the Plaintiff concedes that a bankruptcy represents a constructive dismissal and that there was a change in the Plaintiff’s employer as of 2013. As such, both sides are in agreement that the Plaintiff was employed for 6 years by her current employer, Beauty Express.
[20] The Plaintiff does not, therefore, contend that Beauty Express is the same employer as Premier Salons, or that she in effect worked for Beauty Express since beginning with Premier Salons in 1999. It is the Plaintiff’s position, however, that given the seamless transition from one job to the next and the identical job functions performed by the Plaintiff for the two successive employers, her experience with the earlier employer should count in assessing the relevant notice period owed by the later employer.
[21] In support of this argument, Plaintiff’s counsel refers to the well-established proposition that the Bardal factors should properly be understood as guidelines rather than as a mathematically determinative formula. She submits that the determination of notice is a fact-specific exercise permitting few precise comparisons from case to case: Iriotakis v. Peninsula Employment Services Ltd., 2021 ONSC 998. The court has acknowledged that the analysis is an individualized one, and that reasonable notice will vary with the specific circumstances: Flack v Whiteoak Ford Lincoln Sales Ltd, 2021 ONSC 7176.
[22] Plaintiff’s counsel also submits that prior service with a predecessor employer has been recognized as a relevant factor when calculating a terminated employee’s reasonable notice period: Manthadi v. ASCO Manufacturing, 2020 ONCA 485, at paras. 51-72. This logic applies whether the prior employer, like here, went bankrupt, or was, as in Manthadi, sold as a going concern, If the employee is offered and accepts employment by the new employer, a new contract of employment is entered into but the prior service with the predecessor employer can be recognized “under the rubric of experience, the equivalent of all or some of an employee’s service with the predecessor employer in order to arrive at a fair result: Ibid., at para 67.
[23] Although legally speaking there is no continuous employment between the predecessor employer and the new employer, the long-term employee is assumed to be of more value to the employer than a new employee who comes from unrelated employment. As the Court of Appeal put it in Addison v M. Loeb Ltd. (1986), 1986 CanLII 2474 (ON CA), 53 OR (2d) 602, “when the appellant assumed employment with the respondent, the respondent automatically received the benefit of the services of a very experienced assistant manager and one fully familiar with the operation of the store.”
[24] In Addison, the employee was assistant manager of a supermarket. In Manthadi, the employee was a welder in a manufacturing facility. As with the Plaintiff, they each continued to work in essentially the same job for the new employer after a takeover as they had for the prior employer. In the circumstances, they each were determined to have deserved a notice period that was roughly the same as they would have received had they spent the entirety of their working years doing the same job for the same employer.
[25] As Plaintiff’s counsel herself concedes, each of these cases turns on its individual facts. In Addison and Manthadi, the employees’ respective positions – assistant store manager and skilled welder – require a level of training, experience, and, importantly, familiarity with the operations of the employer. I am unsure of whether one can say the same of the Plaintiff’s position with Beauty Express/Premier Salons. Her transition was seamless and I take no issue with her counsel’s submission that some account of her years of employment with the previous employer should be factored into the notice given by her final employer. But how much is reasonable given that this is being done in recognition of the experience and head-start, as it were, that a person previously employed in this capacity will have had over a newly hired employee?
[26] As indicated, I have little to go on in terms of what the Plaintiff’s job actually entailed. If she had developed a specialized skill in administering dermatological treatments such as chemical peels, microdermabrasion, or laser depilation, her value to a new employer would be high and the years of experience with the previous employer would be worthy of substantial recognition. The employer’s substantial saving in not having to re-train a new employee in complicated and delicate procedures should be well reflected in the notice required at termination.
[27] On the other hand, if under the label of esthetician she focused solely on wax eyebrow trimming and like services, the longevity of experience with Premier Salons would not give her a particular advantage over any other esthetician that salon might have brought on as a new employee. While I have no doubt that the Plaintiff is skilled at her job whatever it may entail – she received excellent reviews over the years from the very management team who she is now suing – there is no hint of any specialized training or even rudimentary medical/technical knowledge on her resumé. Without making too fine a point of it, a “waxing specialist” provides a service that is readily transferable from salon to salon. The employer’s relatively small saving in hiring a someone from the previous company as opposed to someone from another salon should likewise be reflected in the notice required at termination.
[28] Counsel for Beauty Express submits that Premier Salons is legally unrelated to the Beauty Express, and that the Plaintiff should not be given any consideration for her years at the previous company as they are irrelevant. While I do not agree with that position, the paucity of evidence with respect to the particular character of the Plaintiff’s job and the value of long experience gives me pause. I am prepared to assess the Plaintiff’s pre-Beauty Express experience as being of greater value than what Beauty Express is willing to credit to her with, but not as much as was credited to the skilled and specifically experienced employees in the Addison and Manthadi cases.
[29] As an aside, I am cognizant of the Court of Appeal’s instruction that, generally speaking, the character of employment “is today a factor of declining relative importance” when considering the period of notice: Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469 at paras. 27-28. If the question were not one of factoring in the Plaintiff’s time with a previous employer, but rather was a straightforward assessment of a notice period for her time of employment with a single employer, the nature of her job would not be of great significance. A clerical employee or professional employee, bricklayer or software coder, are in the same position when it comes to determining notice. The other Bardal factors – particularly length of employment – have taken on more importance than character of employment.
[30] But the issue here is not one of calculating notice based for the most part on length of employment. The experience with the prior employer does not count in and of itself as work time with the current employer; rather, it is only important precisely because of the experience that it allows the employee to bring with her to that employer. In this context, the nature of the job must be of significance. A job that requires extensive and specific training that the employee already has under her belt when hired will be different than a job that requires minimal training and is more generic in nature.
[31] I conclude that the Plaintiff deserved the percentage equivalent half the notice that the employees in Addison and Manthadi received. Having worked for the combination of Premier Salons and Beauty Express for 20 years, the Plaintiff deserved 10 months’ notice or pay in lieu of notice less the nearly 3 months of working notice that she has already received.
c) Aggravated and punitive damages
[32] The Plaintiff’s counsel submits that when an employer breaches its duty of good faith in the manner of dismissal and it causes injury to the employee, the employee may be compensated for the injury cause by such behaviour. To this end, the dismissal process has been interpreted broadly to permit consideration of “a period of conduct that is not confined to the exact moment of termination itself”: Humphrey v Mene, 2021 ONSC 2539.
[33] As Plaintiff’s counsel points out, the duty of good faith ensures that employees are shielded from bullying, intimidating and harassment from managers: Matthews v Ocean Nutrition Canada Ltd., 2020 SCC 26, at para 82. The burden is on the Plaintiff to demonstrate that she suffered a compensable loss, although medical evidence of psychiatric damage is not required. That said, some evidence is required to show that compensable injuries have occurred; these can include “humiliation, embarrassment, and damage to one’s sense of self-worth and self-esteem”: Humphrey, at paras 173, 175.
[34] The Plaintiff is of the view that she was targeted for a reprisal by Beauty Express because she complained about her reduction in hours. However, other than her own assertion, there is no real evidence of such individualized mistreatment.
[35] In the first place, she states that she was temporarily laid off for a number of months in 2018, and that while she thought this was due to Beauty Express renovating its space in The Bay she was told by other employees that another esthetician was using her work space during this time. Mr. Luborsky, testifying for Beauty Express, confirmed that the premises was being renovated during the Plaintiff’s 2018 absence and denied that anyone else would have been using her space while the renovation was going on.
[36] The Plaintiff has produced no one to corroborate her statement. Indeed, Beauty Express’ counsel submits that the information itself is hearsay and not useful. Although the hearsay statement was not objected to when made by the Plaintiff in testimony, it is Beauty Express’ position that I should give it no weight. I agree. For the Plaintiff to relate what her co-workers supposedly told her without producing a single one of those co-workers carries little to no credibility. That is especially true under the circumstances, where the premises was apparently going through renovation. No one seems to deny that the renovation took place.
[37] It is difficult to believe – and even the Plaintiff is uncertain if it is really the case – that someone was working on customers in the Plaintiff’s place while the salon was undergoing refurbishing. The supposed replacement esthetician has never appeared again, and the Plaintiff cannot identify him or her even though she returned to work in the same spot that the other esthetician supposedly worked for a number of months. There is no credibility to this allegation.
[38] The Plaintiff also states that she was singled out because only a few months after returning from this temporary layoff, she was permanently terminated from her job. She seems certain that had she not complained about things, this would not have happened.
[39] Again, there is no evidence that the Plaintiff was targeted in this way. Indeed, quite the contrary; the Plaintiff was terminated as part of a restructuring in which 49 employees were terminated on the same day. Mr. Luborsky testified that Beauty Express had decided to retain hairdressers and estheticians as independent contractors who keep and bill their own hours and take their own expenses, rather than employees. His evidence was that this was a general trend in the beauty salon industry and that Beauty Express implemented this change at numerous locations, not just at the Bloor Street Bay store.
[40] There is no credibility to the Plaintiff’s claim that she was singled out for a reprisal termination. To be terminated along with 49 others by definition counters the accusation of individual reprisal. Moreover, the Plaintiff, along with the other 48 terminated employees, was made an offer by Beauty Express to continue to work for the company on an independent contractor basis. The employer clearly wanted her to stay on, but on a different legal and financial arrangement. The termination was wrongful in the sense that it was without cause, but there is no suggestion that it was a reprisal or targeted action directed at the Plaintiff.
[41] Finally, the Plaintiff claims that she was mistreated and oppressed by a post-termination meeting held for the terminated employees. In that meeting, which took place on October 4, 2019 – some six weeks after the Plaintiff received her notice of termination – Mr. Luborsky met with the terminated employees and attempted to convince them to stay on in the new arrangement. He testified that they all had the potential to make more money and to keep their own hours as independent contractors, and he wanted to explain that it was in their advantage to accept Beauty Express’ offer.
[42] There is no doubt that the meeting was clumsy and ill-conceived. The transcript of the meeting reveals that Mr. Luborsky wins no award for refinery or tact. His language is crude and peppered with less-than-genteel turns of phrase. He seems to comfortably, almost naturally drop the F-bomb. He testified that he is an accountant by profession and that he has been running businesses for many years and is familiar with employer-employee relations. That may be so, but, to reference a Canadian cultural touchstone, his choice of language is sometimes more Trailer Park Boys than boardroom financier.
[43] The October 4th meeting was recorded by Beauty Express, and a transcript and audio recording of the meeting is in the record. When told by one employee, Ms. Supsiri (known to the Plaintiff as Kay), that a lawyer told her not to sign the proposed new independent contractor agreement, Mr. Luborsky replied that, “A lot of lawyers say stupid things”. Mr. Luborsky then told the audience that they should not be getting severance pay because they got working notice and weren’t really fired; and when Kay followed up seeking further explanation, Mr. Luborsky stated in an exasperated voice, “We have some employees who never, never, ever, fucking settle…” Plaintiff’s counsel submits that in view of this language, “No reasonable employee would not be offended.”
[44] This submission, however, is belied by the employee responses to Mr. Luborsky’s overture to them. The evidence is that 74% of the terminated employees – including Kay, the most outspoken employee to whom most of Mr. Luborsky’s replies were addressed – accepted the new arrangement and have stayed with Beauty Express. Whether they were offended but liked the financial offer, or were not particularly offended and were able to take Mr. Luborsky’s language with a grain of salt, is not part of the evidence. But the fact is that his “sales pitch”, as he called his crudely worded overture, did not particularly alienate the employees. The employees appear to have responded with maturity, letting the salty speech roll off their backs when the financial incentives otherwise appealed to them.
[45] It was wrong, of course, for Mr. Luborsky to attempt to dissuade employees from seeking legal assistance. Any challenge to an agreement signed after being told that lawyers are “stupid” and that they only help those who “never f-ing settle” would doubtless succeed. The agreement would likely not be enforceable against the challenger. But the Plaintiff was not buying Mr. Luborsky’s sales pitch. She did not want to be an independent contractor, she was wise enough to ignore his bad advice and has retained a lawyer and pursued her legal rights. She may not have liked Mr. Luborsky’s language, but it had no impact on her judgment.
[46] More than that, I am not convinced that what the Plaintiff heard at the October 4th meeting had any detrimental impact on her at all. There certainly is no evidence of that, other than the Plaintiff relating (and somewhat misremembering) the conversation when asked to do so on the witness stand. The Plaintiff did not say that she was upset, did not testify that it took her time to compose herself during or after the meeting, or, indeed, that she had turned her mind to Mr. Luborsky’s tirade in any way at all either during or after the meeting. She simply relayed what he had said without mentioning anything about an impact on her; it was as if catching him saying bad words speaks for itself.
[47] As already indicated, so-called moral damages, or aggravated damages, do not require medical evidence. At the same time, the courts have pointed out that such damages cannot be claimed to redress “the normal distress and hurt feelings” resulting from termination …some external evidence of mental distress is typically required to make out a successful claim”: Groves v UTS Consultants, 2019 ONSC 5605, at para 113. The trial record contains no shred of external evidence of mental distress suffered by the Plaintiff.
[48] Turning to the claim for punitive damages, Plaintiff’s counsel contends that Mr. Luborsky’s comments at the October 4th meeting were “insensitive”. It is hard to argue with that; they were. That said, punitive damages are reserved for “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”: Morison v Ergo-Industrial Seating Systems Inc., 2016 ONSC 6725, at para 51. Further, the award is not aimed at impolite conduct in the air; to award punitive damages, there must be an independent actionable wrong: Honda Canada v Keays, 2008 SCC 39, [2008] 2 SCR 362, at para 62.
[49] Beauty Express’ counsel submits that insensitivity, with nothing more, is not oppressive and does not give rise to either aggregated or punitive damages. It is equally hard to argue with that; it does not.
[50] The purpose of punitive damages is not to police words in and of themselves as one might in school or church. Mr. Luborsky would be wise to re-consider his choice of idiom in the future; street language and workplace language make for an uncomfortable mix. But courts are about legal rights and wrongs or oppressive/egregious conduct, not etiquette for its own sake. Without having been oppressive or demonstrably hurtful to the Plaintiff (or any other employee), Mr. Luborsky’s indecorous language provides no grounds for aggravated or punitive damages.
d) Age discrimination
[51] The Plaintiff also claims damages for age discrimination contrary to the Human Rights Code. As already indicated, she was 69 years old at the time of her termination. She is now 72 years old and has not worked since being terminated by Beauty Express. The Plaintiff claims that the termination, together with Mr. Luborsky’s post-termination conduct at the October 4, 2019 meeting, were aimed at her as an older employee.
[52] The burden is on the Plaintiff to establish on a balance of probabilities that a prima facie case of discrimination exists. This entails showing that a characteristic protected from discrimination is engaged, that she experienced an adverse impact, and that the protected characteristic was a factor in the adverse impact: MacKinnon v Celtech Plastics Ltd., 2012 HRTO 2372, at para 16. The burden then shifts to Beauty Express to provide a credible and rational explanation as to why its actions were not discriminatory: Ibid., at para 17.
[53] It was the Plaintiff’s evidence that several times at the meeting, Mr. Luborsky referenced the attitudes of older employees. He suggested that some older people lack the energy and drive necessary to be productive independent contractors. He suggested that many of them would prefer to coast their way to retirement. But he also indicated that older employees can make considerably more money as independent contractors since they have a long time stable of clients.
[54] Mr. Luborsky’s explanation for this is that he specifically referenced older employees not because he wanted to single them out to their detriment, but rather because he was anxious to hire them back on the new terms. The evidence shows that the mass termination in 2019 involved young and old employees alike. The reason Mr. Luborsky went out of his way to address the older employees at the October 4th meeting is that they tended to be more resistant to the independent contractor proposition. The idea, as he explained it, was not to discriminate against them to keep them out of the company, but rather was to address their concerns in an effort to bring them in.
[55] I find that Mr. Luborsky, though indelicate in his explanations, did not discriminate on the basis of age. He addressed the issue of older employees because they were the ones troubled by what he was proposing. It is no more discriminatory to address an older population concerned about a changing work structure more familiar to a younger generation, than it is to address a group of disabled about issues of accessibility directly experienced by them. The singling out of a targeted demographic is not in itself discriminatory absent an adverse impact.
[56] Moreover, there is no evidence in the record suggesting that economic motivation such as a saving in salary or unpaid pension benefits for the employer was a controlling factor behind the Plaintiff’s termination. While Beauty Express was admittedly anxious to implement a policy change across a wide swath of its employees, there is nothing in the record to suggest that it was motivated by factors related to the Plaintiff’s (or any other employee’s) age. The older employees may have needed more attentive explanation of the change, and Mr. Luborsky rose to the occasion in his tactless way. But given the context, that did not constitute age discrimination as understood in the Human Rights Code.
III. Disposition
[57] Beauty Express shall pay the Plaintiff 7¼ months’ pay in lieu of notice, based on her average monthly pay during 2019. The balance of the Plaintiff’s claim is dismissed.
[58] The parties may make written submissions on costs. I would ask Plaintiff’s counsel to email brief submissions to my assistant within three weeks of today, and for Beauty Express’ counsel to email equally brief submissions to my assistant within three weeks thereafter.
Morgan J.
Released: November 7, 2022
COURT FILE NO.: CV-20-00640523-0000
DATE: 20221107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CAROLINE CHIN
Plaintiff
– and –
2186531 ONTARIO INC. o/a BEAUTY EXPRESS CANADA INC.
Defendant
REASONS FOR JUDGMENT
Released: November 7, 2022 E.M. Morgan J.