COURT FILE NO.: CV-17-00062262-0000 DATE: 2023-12-01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

JOSEPH GRIMALDI Plaintiff

Noah G. Aresta, and Steven C. Singh, counsel for the Plaintiff

- and -

CF+D CUSTOM FIREPLACE DESIGN INC. and VINCE VOLPE Defendants

Greta Ladanyi, counsel for the Defendants

HEARD: November 21, 22, and 23, 2023 at Hamilton

THE HONOURABLE JUSTICE M. BORDIN

REASONS FOR JUDGMENT

Overview

[1] Joseph Grimaldi sues the defendants, Vince Volpe and CF+D Custom Fireplace Design Inc. (“CF+D”), for wrongful dismissal. Mr. Grimaldi left his former employment for a position with CF+D as senior project manager. He was terminated without cause less than five months later and was paid two weeks’ severance pay. He claims that as part of his employment contract he is entitled to a payment based on shares in CF+D.

[2] CF+D designs and manufactures custom fireplaces. Mr. Volpe is a director and president of CF+D. His wife is the other director. The defendants say that Mr. Grimaldi had not yet earned any shares in CF+D during his employment and that he is not entitled to any payment based on shares of CF+D.

[3] Mr. Grimaldi and Mr. Maltby testified for the plaintiff. Mr. Volpe was the defendants’ only witness.

[4] The evidence of Mr. Grimaldi and Mr. Volpe was similar in many respects. Mr. Grimaldi’s evidence was sometimes internally inconsistent and inconsistent with aspects of the written record. At times he conflated what he believed with what was discussed and communicated between the parties. Mr. Volpe was forthright and candid. He readily admitted matters he was uncertain about or when he was assuming something or speculating. He was unshaken in cross-examination. On a few occasions, when presented with prior statements in emails or on discovery, he acknowledged his prior answers or what he had written.

Background

[5] Mr. Volpe and Mr. Grimaldi met six times before they signed the employment contract. The first two meetings were chance meetings in the spring of 2016; they were seated in the same row on flights to and from Florida. Mr. Volpe’s wife was seated between them. The conversation was primarily social.

[6] On September 29, 2016, Mr. Grimaldi left a telephone message for Mr. Volpe to call him.

[7] On October 12, 2016, Mr. Volpe, his wife, Mr. Grimaldi, and Mr. Grimaldi’s girlfriend met for dinner at a restaurant. I find that by the end of that evening they had discussed Mr. Grimaldi’s work experience and skill set and Mr. Volpe’s business plans. The discussion between the two men must have been fairly detailed and mutual because without any further meetings or conversations Mr. Volpe emailed Mr. Grimaldi on October 24, 2016 and said that he kept thinking about their discussion and suggested the two of them get together, and on October 28, 2016, Mr. Grimaldi wrote to Mr. Volpe that he looked “forward to our joint venture”. Mr. Grimaldi also testified that by this time he already viewed the possible relationship as one in which he would become a partner in the business.

[8] The next meeting between the two men took place on November 1, 2016 at Milestones restaurant. They furthered their discussions on the future of CF+D, Mr. Volpe’s plans, and Mr. Grimaldi’s possible role. At 7:48 a.m. on November 2, 2016, Mr. Grimaldi wrote to Mr. Volpe that “it was a pleasure having dinner with you and discussing me becoming an integral part of your team” and “I truly look forward to meeting with you in the next several weeks to better understand your company and to address my position to benefit your company’s growth.” He added that he believed it would be a beneficial relationship for both of them once he had done his due diligence.

[9] Mr. Volpe and Mr. Grimaldi met at CF+D’s facilities on November 14, 2016 to view the facilities and to further their discussions. On November 16, 2016, Mr. Grimaldi wrote to Mr. Volpe that he would be available to meet to “continue this future venture”.

[10] On November 18, 2016, they met at Pepperwood restaurant. At this meeting, Mr. Volpe discussed with Mr. Grimaldi his proposal for Mr. Grimaldi’s employment.

[11] Mr. Volpe drafted, and on December 17, 2016, both parties signed, a short document setting out the terms of Mr. Grimaldi’s employment. Mr. Grimaldi read and understood the agreement and did not request any changes. They both agreed the document set out the terms of their agreement and that it was consistent with their discussions at Pepperwood.

[12] At the time the parties were meeting in October and November 2016, CF+D was expanding to a new larger location and was transitioning from primarily retail sales to design and production of custom fireplaces. Mr. Volpe was exploring the possibility of bringing in up to five “junior partners” who could each earn up to five percent of the business. Mr. Volpe was not necessarily looking to retire but was looking to step back somewhat and hand over some responsibility to members of a team who would help grow the business.

[13] Mr. Maltby’s evidence was that Mr. Volpe reached out to him and repeatedly pursued him to join CF+D. Mr. Maltby did not give evidence on the timing of this interaction with Mr. Volpe. Mr. Maltby was not present during any discussions between Mr. Volpe and Mr. Grimaldi. I find that the evidence indicates that the discussions between Mr. Maltby and Mr. Volpe occurred after Mr. Grimaldi had been hired and began his employment with CF+D.

[14] Mr. Maltby’s evidence is consistent with the evidence of both Mr. Grimaldi and Mr. Volpe that CF+D was looking to build a team to lead various areas of the business in order to grow the business. But as the discussions between Mr. Maltby and Mr. Volpe took place after Mr. Grimaldi began with CF+D, Mr. Maltby’s evidence does not much assist in understanding what took place during the meetings between Mr. Grimaldi and Mr. Volpe months earlier.

[15] Both Mr. Grimaldi and Mr. Volpe referred to Mr. Grimaldi’s earning of shares in CF+D as making Mr. Grimaldi a partner or junior partner once he owned the shares. In his emails, Mr. Grimaldi referred to a joint venture in referring to their relationship. Neither the contract nor the emails leading up to the contract use the words partner or partnership. The contract does not refer to a joint venture. The evidence makes clear that Mr. Volpe and Mr. Grimaldi used these terms in a way which did not necessarily reflect the legal meaning of those terms. Mr. Grimaldi was clearly an employee with an opportunity to earn shares. The parties entered into an employment contract. It was not a partnership or a joint venture.

The Employment Contract

[16] The relevant provisions of the employment contract provide that Mr. Grimaldi was entitled to:

1. An annual salary of $90,000;
2. Holiday pay at 6% of current earnings totaling 3 weeks per year;
3. Benefits after 3 months paid in full by CF+D;
4. A late model vehicle provided by CF+D with gas and insurance or a car allowance of $600 per month;
5. “Effective May 1, 2017; After Corporate Accountants have crystallized share value, you are to receive annually and cumulatively 1% of company shares for 5 consecutive years of service for a total of 5% to be held in trust and only to officially transfer ownership upon the successful completion of a five year term. Each completed year end will in addition pay out the value of accumulated share ownership at that time”.

[17] The parties differed somewhat on the interpretation of this last provision.

Contractual Interpretation

[18] The Ontario Court of Appeal in Amberber v. IBM Canada Ltd., 2018 ONCA 571, 424 D.L.R. (4th) 169, at para. 43, noted that it is generally accepted that employment contracts are to be interpreted somewhat differently from other contracts, in particular because employees usually have less bargaining power than employers. Where a termination clause can reasonably be interpreted in more than one way, the interpretation that favours the employee should be preferred.

[19] I note that there was not a great imbalance of bargaining power between Mr. Grimaldi and the defendants. Mr. Grimaldi did not need to leave Honeywell Business Solutions (“Honeywell”) and could, and did, obtain the employment package that he wanted. In addition, at issue is a clause relating to the acquisition of shares and an annual payment, not the interpretation of a termination clause.

[20] At paragraph 44, the Court in Amberber confirmed the principle in Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888, that where an employment contract is prepared by the employer on a more or less take-it-or-leave-it basis, the ordinary contra proferentem rule would require that, in the case of ambiguity, the more favourable interpretation should be given to the non-drafting party.

[21] Here, the contract was drafted by Mr. Volpe setting out the terms that he was prepared to offer, and Mr. Grimaldi was content with the terms and did not attempt to further negotiate them.

[22] The contra proferentem principle applies only where there is a genuine ambiguity: Amberber, at para. 45.

[23] The court in Amberber referred to some of the general principles of contractual interpretation set out by the Supreme Court of Canada and the Ontario Court of Appeal. A useful summary of those principles is set out in Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, 162 O.R. (3d) 200, at paras. 16-17:

[16] These principles were conveniently summarized by Brown J.A. in Weyerhauser, at para. 65. A judge interpreting a contract should:

i) determine the intention of the parties in accordance with the language they have used in the written document, based upon the “cardinal presumption” that they have intended what they have said;

ii) read the text of the written agreement as a whole, giving the words used their ordinary and grammatical meaning, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective;

iii) read the contract in the context of the surrounding circumstances known to the parties at the time of the formation of the contract. The surrounding circumstances, or factual matrix, include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement, such as facts concerning the genesis of the agreement, its purpose, and the commercial context in which the agreement was made. However, the factual matrix cannot include evidence about the subjective intention of the parties; and

iv) read the text in a fashion that accords with sound commercial principles and good business sense, avoiding a commercially absurd result, objectively assessed.

[17] Brown J.A. added several observations about the proper consideration of the “factual matrix” by a judge interpreting a contract, at paras. 66-68, to the effect that it comprises, as stated in Sattva at para. 58, only “objective evidence of the background facts at the time of the execution of the contract... that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting”. The “surrounding circumstances”, Sattva noted, at para. 57, “must never be allowed to overwhelm the words of that agreement” and cannot be used “to deviate from the text such that the court effectively creates a new agreement”.

[24] Applying the above principles to the evidence and the employment agreement, I find there is no ambiguity in the first part of clause 5 of the contract. It clearly sets out that Mr. Grimaldi would earn one percent of the shares of CF+D every year, for five years, and that he would only receive those shares once he completed five years of employment with CF+D. Whether the shares to be transferred were shares of Mr. and Mrs. Volpe or new shares does not affect the clear intention of the parties expressed in the contract: at the end of five years of employment, Mr. Grimaldi would be transferred shares and would own five percent of CF+D.

[25] I find that the words “in trust” were not understood by the parties in the sense of the legal meaning of a trust. The words “in trust” assist in understanding that the mutual intention as expressed in the contract was that Mr. Grimaldi would not actually receive any shares until after five years of employment were completed. This is consistent with the evidence of the surrounding circumstances known to both parties when they signed the contract.

[26] The second part of clause 5, that “each completed year end will in addition pay out the value of accumulated share ownership at that time” is not, on its face, quite as clear. It must be interpreted in the context of the entire contract and, in particular, in the context of the prior sentence.

[27] The parties intended to increase Mr. Grimaldi’s compensation based on the performance of CF+D. Both men testified that Mr. Grimaldi was to receive a payment each year tied to the share percentage. The use of the words “in trust” assists in interpreting that the mutual intention was that Mr. Grimaldi would potentially receive some benefit every year over the five years even if not the actual shares.

[28] Sometime after the Pepperwood meeting on November 18, 2016, Mr. Grimaldi made notes of what he understood the employment proposal to be. He said the notes were made shortly after the meeting when he wanted to compare the offer from CF+D with what he was earning at Honeywell. It was important to Mr. Grimaldi that his compensation at CF+D be similar to what he was making at Honeywell.

[29] The notes show Mr. Grimaldi working out how he sees the comparison between what he was paid by Honeywell and what he understood he was being offered. Some of the Honeywell figures in the notes were admittedly ballpark figures. In my view, there are aspects of the notes that suggest they were written sometime later as Mr. Grimaldi reflected back on his understanding of the meeting. By way of example, he writes: “But I was convinced to leave HW for a long-term deal and eventually 100% ownership.” This backward-looking language seems a curious thing to write when purportedly documenting discussions immediately following a meeting. In addition, I find that there was no offer of Mr. Grimaldi one day owning 100 percent of CF+D.

[30] Mr. Grimaldi used the words “sales” and “value” of CF+D interchangeably. I accept Mr. Grimaldi’s evidence that Mr. Volpe told him that sales of CF+D in 2016 were approximately $3,000,000 and that sales in 2017 could be $5,000,000. Mr. Volpe acknowledges that CF+D was approaching $3,000,000 in sales in 2016 and did not deny that he may have told Mr. Grimaldi this. CF+D led no evidence to dispute these amounts.

[31] Sales of a company like CF+D and the value of the company are not equivalent. Shares have value only if the corporation itself has value. Mr. Grimaldi understood a valuation was needed to establish the actual value of the company and knew one had not been completed when he signed the employment agreement.

[32] Mr. Grimaldi refers to his notes which say that one percent was worth a $30,000 cash bonus. I do not accept that Mr. Volpe told Mr. Grimaldi that he would be entitled to $30,000 after one year pursuant to this provision. I find that the parties did not expressly agree on the amount of the annual payment as it was to be based on the value of the accumulated share ownership of CF+D, an amount that could not be determined until the year end of the company was completed. Mr. Grimaldi may have believed or hoped he would earn an additional $30,000 after his first year, but this was based on his own understanding, not on facts known to both parties.

[33] I find that the meaning of clause 5 is that at the completion of each year, Mr. Grimaldi would be entitled to receive a payment equal to the value of the accumulated share ownership that Mr. Grimaldi had notionally earned to that point in time. After one year, the payment to Mr. Grimaldi would be equal to one percent of the value of CF+D. After two years, the payment to Mr. Grimaldi would be equal to two percent of the value of CF+D and so on up to five percent. In my view, this is akin to an annual bonus.

[34] A question remains as to when the annual payment and earned share percentage was to accrue. Although CF+D’s year end was April 30, I find that the one-year period refers to a calendar year. Mr. Grimaldi commenced employment in January 2016. As drafter of the contract, if Mr. Volpe had intended the yearly period to coincide with the year end of the company, which would require Mr. Grimaldi to work an extra three months to earn the first one percent and first annual payment, Mr. Volpe could have expressly said so. The contract does not clearly do that. The share percentage would be earned, and the annual payment would be paid out effective as at the calendar year end, based on the value established at the April 30 year end of CF+D.

Employment and Termination

[35] Mr. Grimaldi was offered permanent employment. There was no termination date in his contract. Both Mr. Grimaldi and Mr. Volpe expected that Mr. Grimaldi would remain with CF+D long term.

[36] Mr. Grimaldi began work for CF+D on January 30, 2017. Mr. Grimaldi says his last day of work was June 27, 2017. The defendants say it was June 22, 2017. Both agree there was a discussion on June 22 where Mr. Volpe asked Mr. Grimaldi to resign and then terminated him. Mr. Grimaldi says there was a second meeting to the same effect on June 27, 2017.

[37] The record of employment (“ROE”) indicates the last day of work for which Mr. Grimaldi was paid was June 22, 2017. Mr. Grimaldi never objected to the ROE. I find that June 22, 2017 was Mr. Grimaldi’s last day of work.

[38] There is no issue that Mr. Grimaldi was terminated without cause. He was paid two weeks’ salary in lieu of notice from June 23, 2017 to July 6, 2017.

The Bardal Factors

[39] As the plaintiff was dismissed without cause and without notice, he was entitled to compensation for the reasonable notice he should have received.

[40] There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each case, having regard to the character of the employment, the length of service of the employee, the age of the employee and the availability of similar employment, and having regard to the experience, training, and qualifications of the employee: Bardal v. The Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (O.H.C.), at p.145.

[41] The “Bardal factors” are not exhaustive; Canadian courts have added several additional factors to the Bardal list: Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 82.

Character of Mr. Grimaldi’s employment

[42] Mr. Grimaldi was the senior project manager and reported directly to the owner of the company. He was expected by Mr. Volpe to act like an owner in fulfilling his role. He supervised and oversaw five to seven employees. He was responsible for the production side of the business. Mr. Grimaldi was the highest paid employee of the company at the time. It was expected by the parties that he would a five percent interest in the company after the first five years of his employment.

Length of service

[43] Mr. Grimaldi was employed for 4 months and 23 days.

Age of employee

[44] Mr. Grimaldi was 50 years old at the time of his termination.

Availability of similar employment having regard to the experience, qualifications, and training of the employee

[45] Mr. Grimaldi began his employment as a teacher. He worked as a teacher in British Columbia for three years. He then taught in Brantford, Ontario for three years.

[46] In 2001, Mr. Grimaldi began to work for Henry Schein in sales and marketing. After four years, he joined Patterson Dental in sales and eventually moved into overseeing the building of dental offices. After six years, he joined Sinclair Group where he worked for approximately two years in sales, design of dental offices, procurement, and management of the construction of dental offices. In 2011/12 Mr. Grimaldi obtained a Project Management Certificate from McMaster University after an eight-month course.

[47] Mr. Grimaldi then worked for an environmental company for six months in project management which involved ensuring that a contract was fulfilled. He was then hired by Honeywell as a senior project manager. He oversaw contractors, ensured compliance with drawings, transitioned the buildings from a construction site to an operational facility, and did site orientation for staff. He had been with Honeywell for about four years when he left to join CF+D.

[48] After termination, Mr. Grimaldi used the services of VPI Employment Services, attending various workshops including resume building and cover letter writing. He applied for well over a hundred positions between mid-July 2017 and early June 2018. He attended five interviews with prospective employers.

[49] I find that the short nature of Mr. Grimaldi’s employment at CF+D likely affected how long it took him to find a new job. The short duration of his employment at CF+D, considering his age and past experience, would require him to explain to prospective employers why he was terminated so soon after being hired.

Inducement

[50] At trial Mr. Grimaldi did not advance a separate claim for misrepresentation. He relies on representations made to him to support his position that he was induced to leave Honeywell and join CF+D.

[51] Whether an employee has been induced to leave his previous secure employment has been considered a factor in lengthening the notice period: Wallace, at paras. 83-85. The importance of the inducement in deciding the notice period will vary based on the facts of a particular case and is left to the discretion of the trial judge. Not all inducements are of equal weight when determining the length of the notice period: Firatli v. Kohler Ltd., at para. 24; see also Wallace, at para. 85.

[52] At paragraphs 25 and 26 of Firatli, the court noted that in considering whether an employer’s recruitment methods amounted to inducement, courts have highlighted the following factors:

1. the reasonable expectations of both parties;
2. whether the employee sought out work with the prospective employer;
3. whether there were assurances of long-term employment;
4. whether the employee did due diligence before accepting the position by conducting their own inquiry into the company;
5. whether the discussions between the employer and prospective employee amounted to more than the persuasion or the normal “courtship” that occurs between an employer and a prospective employee;
6. the length of time the employee remained in the new position, the element of inducement tending to lessen with the longevity of the employment; and
7. the age of the employee at termination and the length of employment with the previous employer.

[53] As noted, Mr. Grimaldi was 50 when terminated. Before being hired by CF+D, he had been employed with Honeywell for about four years. Mr. Grimaldi did not need to leave Honeywell. Both parties expected the position to be a permanent and long-term position.

[54] Mr. Grimaldi wanted to do his due diligence. By his own admission, he did not do much due diligence. Other than speaking to Mr. Volpe, he saw the CF+D facility. Mr. Grimaldi came to his own conclusion as to the success of CF+D based on the car Mr. Volpe drove, that Mr. Volpe had a place in Florida, the nature of CF+D’s facilities, and what he was told about the sales and the nature of the business.

[55] Mr. Grimaldi was able to ensure that his compensation package was similar to his compensation with Honeywell. The prospect of partial ownership in CF+D after five years gave rise to the potential for greater compensation than at Honeywell. However, it was a distant, future prospect.

[56] The responsibilities at CF+D, on the evidence of Mr. Grimaldi with respect to the size of the jobs he worked on at Honeywell and the myriad responsibilities he had there, were less than those at Honeywell.

[57] There was no greater promise of security at CF+D than at Honeywell.

[58] In my view, the parties sought each other out. They both pursued their possible working relationship, and each was intrigued by what the other offered. One did not pursue the other with more vigor. While perhaps not a typical courtship, it was a mutual one.

[59] I take into account as well Mr. Grimaldi’s history of changing employers every two to six years.

[60] Considering all the factors, I cannot find that there was inducement of Mr. Grimaldi to leave Honeywell.

Bad faith

[61] The plaintiff says that the notice period should be extended because of misconduct and bad faith by CF+D. Mr. Grimaldi says he was caught off guard by his termination as there were no prior warnings and Mr. Volpe was vague and unwilling to expand on the reasons for his termination, leaving Mr. Grimaldi shocked at his termination.

[62] No damages are available to an employee for the actual loss of his job and/or pain and distress that may have been suffered as a consequence of being terminated: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 50.

[63] In paragraph 56 of Keays, the Court states:

The contract of employment is, by its very terms, subject to cancellation on notice or subject to payment of damages in lieu of notice without regard to the ordinary psychological impact of that decision. At the time the contract was formed, there would not ordinarily be contemplation of psychological damage resulting from the dismissal since the dismissal is a clear legal possibility. The normal distress and hurt feelings resulting from dismissal are not compensable.

[64] There was no contemplation by the parties at the time of the contract that a breach in certain circumstances would cause the plaintiff mental distress. Damages resulting from the manner of dismissal are then available only if they result from the circumstances described in Wallace, namely, where the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”: Keays, at para. 57.

[65] Employers are held to an obligation of good faith and fair dealing in the manner of dismissal. The expectation is that, in the course of dismissal, employers would be candid, reasonable, honest and forthright with their employees. There is an expectation by both parties to the contract that employers will act in good faith in the manner of dismissal. Failure to do so can lead to foreseeable, compensable damages: Keays, at para. 58.

[66] As further explained in Keays, at paragraph 59, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages. Examples of conduct in dismissal resulting in compensable damages include attacking the employee’s reputation by declarations made at the time of dismissal, misrepresentation regarding the reason for the decision, or dismissal meant to deprive the employee of a pension benefit or other right.

[67] The defendants did not take the position that Mr. Grimaldi had been terminated with cause.

[68] Mr. Grimaldi was terminated in private in Mr. Volpe’s office. He was able to say goodbye to the other employees. He was not escorted out. There was nothing exceptional about the event. There was no evidence that Mr. Grimaldi was maligned or embarrassed by Mr. Volpe during the termination process.

[69] The termination letter thanked Mr. Grimaldi for his energy and effort and set out the reasons for Mr. Grimaldi’s termination from CF+D’s perspective. Mr. Grimaldi does not agree with the reasons set out in the letter. There is some evidence that there were no reported significant issues with Mr. Grimaldi’s performance. He was still in the training stage. That does not mean there was something unfair, untruthful, misleading or unduly insensitive in the manner of dismissal of Mr. Grimaldi or that CF+D was not candid, reasonable, honest, and forthright in its dismissal of Mr. Grimaldi. The evidence does not support such a finding.

[70] I find that the plaintiff has not established bad faith on the part of the defendant.

Reasonable Notice Period

[71] The plaintiff provided cases he asserts are comparables with notice periods of 12 months. The defendants provided cases they assert are comparables with notice periods of two weeks to one month.

[72] The Court of Appeal in Love v. Acuity Investment Management Inc., 2011 ONCA 130, at paragraph 19, cautions that reference to case law in search of a length of service comparables must be done with great care because there are other relevant factors that go into the determination of notice in each case.

[73] Considering all of the above factors, including Mr. Grimaldi’s age at termination, his position with CF+D, the availability of similar employment, the experience and qualifications of Mr. Grimaldi, his length of service, that there was no inducement, and bearing in mind that the object of fixing a reasonable notice period is to determine in the particular circumstances of the case how long it would reasonably take the terminated employee to find comparable employment, I find that despite the short length of service with CF+D, five months and two weeks’ notice was appropriate in the circumstances.

Mitigation

[74] The defendants assert that Mr. Grimaldi failed to mitigate his damages.

[75] A terminated employee has a duty to mitigate by seeking and accepting reasonably comparable employment. The employer has the onus to prove lack of reasonable efforts to mitigate: Humphrey v. Mene Inc., 2022 ONCA 531, at para. 50.

[76] As set out in paragraph 47 of Humphrey, comparable employment does not mean identical employment. It means a comparable position reasonably adapted to the plaintiff's abilities.

[77] The defendants say Mr. Grimaldi failed to mitigate because he did not apply for a job until July 17, 2017, three weeks after his termination. I do not accept this submission. It was not an unreasonable amount of time. Moreover, during that time, Mr. Grimaldi was working on preparing to send out job applications.

[78] The defendants say Mr. Grimaldi failed to mitigate because he was not prepared to accept a job with CSL Group for approximately $75,000 in August 2017, less than two months after termination. However, CSL Group never offered Mr. Grimaldi a job.

[79] The defendants say Mr. Grimaldi failed to mitigate his damages because Honeywell did not hire him. Mr. Grimaldi applied to Honeywell. He cannot control the decisions Honeywell makes.

[80] The defendants also say Mr. Grimaldi should have used more job search platforms than just Indeed.com and Workopolis. I reject the defendants’ submissions. They proffered no evidence that there were comparable jobs available to Mr. Grimaldi that he did not take. Mr. Grimaldi did not stand idly by after his termination. He tried without success to obtain employment.

[81] The defendants have not established that the plaintiff failed to mitigate his damages.

Annual Payment

[82] Mr. Grimaldi seeks damages for the annual payment he would have earned.

[83] The damages award should place the employee in the same financial position he would have been in had proper notice been given. This typically includes all the compensation and benefits that the employee would have earned during the notice period: Paquette v. TeraGo Networks Inc., 2016 ONCA 618, at para.16. The court may also award damages for the lost opportunity to earn a bonus: Paquette, at para. 17.

[84] The defendants say Mr. Grimaldi did not specifically plead damages related to the annual payment. I find that the plaintiff was not required to do so. A claim for damages for wrongful dismissal includes the compensation and benefits the employee would have earned during the notice period, including any bonuses.

[85] The question is whether Mr. Grimaldi would have qualified for the annual payment under his contract had he been given proper notice of his dismissal: Paquette, at para. 11.

[86] I have found that five months and two weeks was the reasonable notice period. The notice period does not bring Mr. Grimaldi to December 31. As a result, I find he was not entitled to an annual payment.

[87] If Mr. Grimaldi had been entitled to an annual payment, an issue arises as to the value of the payment. Neither party led any evidence as to the value of CF+D after Mr. Grimaldi’s first year of employment. The plaintiff has the burden of proving his damages. While a court has an obligation to do its best with the evidence before it where a proven loss is difficult to quantify, this is not such a case.

[88] The loss was easily quantifiable by way of an analysis of CF+D’s financial statements and an opinion from a business valuator. The plaintiff did not present such evidence. The plaintiff did not provide the court with evidence of CF+D’s financial statements which would have provided some evidence of profits and retained earnings upon which to make some assessment of the value of CF+D.

[89] Further, the plaintiff did not particularize in the statement of claim the damages sought in lieu of the annual payment. I was provided with no evidence that the defendants knew the plaintiff was seeking damages of $30,000 for a bonus or annual payment, apart from a notation in Mr. Grimaldi’s handwritten notes about his calculation of the “cash bonus”. Had there been particularization in the claim or evidence that the defendants were aware of the amount claimed as damages for the annual payment, the defendants might be criticized for not leading evidence to dispute the amount claimed.

[90] I have rejected Mr. Grimaldi’s position that the parties agreed the annual payment in the first year was to be $30,000. I have evidence that the sales in 2016 were approximately $3,000,000 and might be $5,000,000 in 2017. However, I do not have evidence of the value of CF+D.

[91] I do not have evidence before me to quantify the annual payment for 2017.

Shares in CF+D

[92] Mr. Grimaldi seeks damages for the shares he says he would have earned.

[93] The end of the notice period represents the end point of Mr. Grimaldi’s entitlement to compensation in lieu of notice, not the end point of his employment: Love, at para. 51. Mr. Grimaldi was terminated on June 22, 2017 after less than five months of employment. He ceased to be an employee of CF+D on June 22, 2017: Love, at para. 16. As of the date of his termination, he had not yet earned any shares.

[94] The language of the employment contract clearly limits Mr. Grimaldi’s ability to acquire any shares until he has completed five years of employment. Mr. Grimaldi did not acquire any shares in CF+D.

Benefits

[95] Mr. Grimaldi says that benefits should be fixed at between 10 to 15 percent of his salary. He says the court should fix benefits at 15 percent. He gives no explanation, evidence, or case law for either proposition.

[96] The defendants, without proffering evidence or case law, say that 10 percent is the appropriate percentage.

[97] I fix benefits at 12.5 percent of salary.

Vacation Pay

[98] The plaintiff seeks vacation pay calculated at six percent of the amount of salary to the end of the notice period.

[99] The defendants say that, as set out in Cronk v. Canadian General Insurance Co. (1995), 25 O.R. (3d) 505 (C.A.), vacation pay is not payable.

[100] The evidence is that by June 22, 2017, Mr. Grimaldi had taken 11 of his 15 vacation days. There is no evidence before me that he was also paid vacation pay during that time. The plaintiff led no evidence of loss or expense associated with lost vacation benefits nor did he lead any evidence that he had suffered in any way as a result of not being able to take a meaningful holiday.

[101] As in Cronk, to award the plaintiff damages for vacation pay, on top of an award of full salary for the period of notice to which he was entitled (which necessarily includes payment of his salary for any vacation he may have taken had he worked during that notice period) is to provide double indemnity, or put another way, to provide compensation for a loss that he has not suffered.

[102] I find Mr. Grimaldi is not entitled to vacation pay.

Damages

[103] I find that Mr. Grimaldi is entitled to damages calculated on the follow basis:

1. five months and two weeks salary in lieu of notice based on $90,000/year, less the two weeks already paid to Mr. Grimaldi as severance pay;
2. benefits calculated at 12.5 percent of five months and two weeks of salary based on $90,000/year;
3. a car allowance at $600/month for five months and two weeks.

[104] The damages are payable by CF+D.

No Personal Liability

[105] No evidence has been adduced by the plaintiff to find personal liability against Mr. Volpe. The claim against Mr. Volpe is dismissed.

Costs

[106] The parties are encouraged to resolve the issue of costs. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than three double-spaced pages in length, together with excerpts of any legal authorities referenced, according to the following timetable:

1. The plaintiff shall serve his bill of costs and submissions, if any, by no later than December 18, 2023.
2. The defendants shall serve their bill of costs and submissions, if any, by no later than January 5, 2024.

[107] All submissions are to be filed with the court, with a copy also provided to the judicial assistants at: St.Catharines.SCJJA@ontario.ca, by end of day January 5, 2024.

[108] If no submissions or written consent to a reasonable extension are received by the court by January 5, 2024, the matter of costs will be deemed to have been settled.

M. Bordin, J. Released: December 1, 2023