CITATION: Jones v. Strides Toronto, 2025 ONSC 2482
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DÉSIRÉE JONES
Plaintiff
– and –
STRIDES TORONTO SUPPORT SERVICES
Defendant
Ethan Rogers, for the Plaintiff
Daryn Jeffries, for the Defendant
HEARD: January 27, 2025
P.J. MOORE, J.
1This is a summary judgement Motion by the Plaintiff under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. By way of an Amended Statement of Claim dated December 14, 2023, the Plaintiff seeks damages against her former employer, the Defendant, for wrongful dismissal.
2The three questions the Plaintiff submits the Court must answer are as follows:
i. Is summary judgement appropriate in this matter?
ii. Are the termination provisions in the Employment Agreement enforceable?
iii. If the termination provisions are not enforceable, what is the appropriate reasonable notice period for the Plaintiff at common law?
OVERVIEW
3The Plaintiff, Désirée Jones (“Jones”), commenced employment with Strides Toronto Support Services (“Strides”) on January 10, 2022, in the position of Senior Manager of the Provincial Walk-In Program, pursuant to a written employment contract dated December 22, 2021. Strides is a not-for-profit multi-service agency located in Toronto, Ontario which
provides a wide range of programs and services to children, youth and their parents and families.
4Her job was to support the development and management of a provincial virtual walk-in clinic called “One Stop Talk”. Initially, this involved overseeing navigators, not clinicians, but around about June 2022, Jones also began overseeing clinicians and in July 2022 she began overseeing one Application Specialist. At one time, she was overseeing up to 5 Navigators, 4 Clinicians and a Specialist. Her job also included supporting various partnerships relevant to the program and attending meetings to support the development of the program which was a pilot program.
5Jones was terminated from her employment on a without cause basis on May 15, 2023. Her total period of employment was 1 year, 4 months and 6 days.
6The employment contract contained a termination clause limiting Jones’ entitlements upon a not for cause termination of employment to the entitlements under the Ontario Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) plus an additional week for each year of service completed or proportionally for each month in an incomplete year. Jones received a lump sum payment in lieu of notice of $6,759.97, equal to approximately
3.5 weeks of her regular base pay, as well as outstanding wages and accrued vacation pay. Jones’ benefits coverage was continued until May 29, 2023.
7The Plaintiff was 43 years old when her employment was terminated. She was the mother of a young child. Jones’ husband was also let go from his employment in October 2023 where he had worked for about eleven years, which impacted the family’s financial abilities.
8I will deal with the positions of the parties in more detail under each issue but thought it would be helpful to summarize them at the outset. The Plaintiff argues that a summary judgement motion is the most appropriate and cost-effective means of dealing with this action. She submits that the termination clause of the employment contract is unenforceable, and she should receive reasonable notice under common law. She argues that the appropriate reasonable notice in this case is eight (8) months pay or a net payment of $64,200.75.
9The Defendant’s position is that it would be inappropriate to proceed by way of summary judgment motion as this action was brought under the simplified rules which do not allow for cross-examination on the motion, particularly with respect to mitigation. They argue that the termination clause in the employment contract is clear, unambiguous and enforceable. In the event that the contract is found to be unenforceable, they submit that the maximum notice period would be three to four months and that the Plaintiff’s failure to mitigate should be taken into account.
(i) Is summary judgement appropriate in this matter?
10Rule 20.01(1) provides that a plaintiff may move for summary judgment on all or part of the claim in the statement of claim. A court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring trial: r. 20.04(2).
11A responding party on a motion for summary judgment must set out the specific facts, in affidavit material or other evidence, showing that there is a genuine issue requiring a trial:
r. 20.02(2). Where the evidence presented by the moving party prima facie establishes that there is no genuine issue for trial and the moving party is entitled to summary judgment as a matter of law, the responding party assumes the evidentiary burden of presenting evidence which is capable of supporting the position advanced in its pleading in order to preclude the granting of summary judgement: Vincorp Financial Ltd, et al. v Hope’s Holdings Inc, et al., 2010 ONSC 6819, 104 O.R. (3d) 538, at para. 16, citing Lang v. Kligerman, 1998 CanLII 4866 (ON CA), [1998] O.J. No. 3708, at para. 9.
12There will be no genuine issue requiring a trial when “the judge is able to reach a fair and just determination on the merits of the motion for summary judgement”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49 (“Hryniak”). This will be the case when the process:
a. Allows the judge to make the necessary findings of fact;
b. Allows the judge to apply the law to the facts, and
c. Is a proportionate, more expeditious and less expensive means to achieve a just result.
See: Hryniak at para. 49.
13A party is obliged to put its best foot forward in response to a summary judgement motion. The court will assume that the parties have placed before it, in some form, all the evidence that will be available for trial: Barsheshet v. Aviva Canada, 2015 ONSC 4439 , at paras. 6, 42-43; O’Laughlin v. Byers, 2015 ONCA 210 at para. 5; Sweda Farms v. Egg Farmers
of Ontario, 2014 ONSC 1200, at para. 33, aff’d, 2014 ONCA 878 at para. 7.
14In their written materials, the Defendant submitted that the matter should not proceed by way of summary judgment as it was commenced under Rule 76 of the Rules which establishes a simplified procedure for bringing actions to trial and places restrictions on the pre-trial process including prohibiting the cross-examination of a deponent on an affidavit. They argued that the prohibition on cross-examination restricted its ability to marshal all the evidence necessary on the issue of mitigation to meet its obligation to “put their best foot forward” and would be unfair. In support of its argument, the Defendant cited Manthadi v. ASCO Manufacturing, 2020 ONCA 485, at para. 37 and Cornacchia v. Rubinoff, 2018 ONSC 2732, at para. 40.
15It submitted that the limited oral examination held under Rule 76.04(2) is not a substitute for cross-examination on an affidavit and does not ward against the unfairness of denying the Defendant the ability to sufficiently test the Plaintiff’s evidence, regarding her mitigation efforts, through cross-examination. The Defendant cited Singh v. Concept Plastics Limited, 2016 ONCA 815, at paras. 22, 24, 27; Lewis v. Blue Star Ford Lincoln
Sales Ltd, 2021 ONSC 7408, at paras. 50, 57; and Bomhof v. Eunoia Inc., 2012 ONSC
3191, at para. 17.
16The Defendant also provided the case of Combined Air Mechanical Services Inc et al v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1, at paras. 254-255 (“Combined Air”), where the Court of Appeal highlighted the tension between the streamlined mechanisms of Rule 76 and motions for summary judgment under Rule 20. The court found at paras. 254-255:
254….No doubt, in appropriate cases, a motion for summary judgement in a Rule
76 action can be a useful tool to promote the efficient disposition of cases. However, it will often be the case that bringing a motion for summary judgment will conflict with the efficiency that can be achieved by simply following the abridged procedures in Rule 76.
255When a judge is faced with a contested motion for summary judgment in a simplified procedure action that requires exercising the powers under rule 20.04(2.1), the judge will […] also need to assess whether entertaining the motion is consistent with the efficiency rationale reflected in the simplified procedures under Rule. 76.
17The Plaintiff responds that a motion for summary judgment is often an appropriate vehicle in which to determine a wrongful dismissal action, particularly when cause is not alleged: Arnone v. Best Theratronics Ltd., 2015 ONCA 63, at para. 12, leave to appeal refused, 2015 CanLII 43081 (SCC) at para. 1.
18Further, the Plaintiff submits that, as indicated in Combined Air at paras. 256-267, a summary judgement motion is available and appropriate for matters proceeding under simplified procedure provided there is not significantly conflicting evidence on issues confronting the judge. They point out that the only evidence on mitigation comes from the Plaintiff herself and the Defendant has not provided any evidence to contradict her evidence provided on discovery. The Plaintiff argues that she was fully cross-examined on the issue of mitigation at oral discovery and the Defendant didn’t even use their full allotted time under the Rule.
19In oral argument, counsel for Strides indicated that if the court found that the termination clause was enforceable or in the strict alternative that reasonable notice was no more than 4 months, then dealing with this matter by way of summary judgment made sense and didn’t prejudice the Defendant. Given my findings on this matter, I therefore do not need to deal with this issue and the tension between the simplified rules and summary judgment motions. In any event, I find that whether a summary judgment motion is appropriate in an action under the simplified rules is a case-specific determination.
(ii) Are the termination provisions in the Employment Agreement enforceable?
20I have attached the termination clause contained in the employment document as an appendix to this decision. In her written argument, the Plaintiff advanced the following three bases on which the termination provisions fell short of the requirements of the ESA:
a. The “without clause” section indicated that the organization could terminate the employment without cause “at any time”.
b. The “just cause” section included references to amounts in (a) and (b) even though no such subparagraph letters were contained in the agreement.
c. The “with cause” section included a potential denial of group benefits upon termination.
21The Plaintiff submits that the words “at any time” could include terminating an employee on the conclusion of the employee’s leave or in reprisal for attempting to exercise a right under the ESA, which would violate ss. 53 and74 of the ESA, and therefore the provisions are unenforceable. They rely on Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029(“Dufault”).
22The Defendant submits that Dufault does not stand for the proposition that the words “at any time” are problematic. In that case, the without cause language in the contract stated that employment could be terminated without cause at the employer’s “sole discretion” and “at any time.” The trial judge in that case found that the termination clause was invalid because it could not grant the employer “sole discretion” to terminate the employment at any time because the ESA constrains the exercise of that discretion in some circumstances. The Court of Appeal upheld the decision in Dufault on other grounds and the court did not rule on the words “at any time”: 2024 ONCA 915 at para. 25.
23I find that the Dufault decision does not stand for the proposition that the words “at any time” divorced from “sole discretion” are improper in an employment contract. I do not find that these words in the termination clause in this case bring it into conflict with the ESA and make it unenforceable.
24The Plaintiff’s second ground for arguing that the termination provisions in the employment contract were unenforceable was that it referred to “amounts set out in (a) above but you will not receive the amounts in (b) above” and there were no paragraphs labelled (a) and (b), which created ambiguity. Further, the word “plus” appeared at the end the first bulleted paragraph and the Plaintiff’s argue that it is unclear what that “plus” included.
25The Defendant argue that although the two bulleted paragraphs preceding the paragraph referring to (a) and (b) are not labelled as such, it is “plain and obvious” that this is what is being referenced. The Defendant submit that a contract can only be void for ambiguity if there is a conflict between two or more reasonable interpretations and the court should never strain to find ambiguity: Amberber v. IBM Ltd, 2018 ONCA 571 at para. 63 (“Amberber”);Chilton v. Co-Operators General Insurance Co., 1997 CanLII 765 (ON CA), 32 O.R. (3d) 161, 143
D.L.R. (4th) 647, at pg. 169 (“Chilton”).
26I have read the passages in issue and agree that there does not appear to be an alternative reasonable interpretation and therefore the lack of lettering on the bulleted paragraphs, while lacking some clarity, is not ambiguous and does not, in and of itself, make the termination provision unenforceable. I do not find the word “plus” at the end of bulleted paragraph number one to be ambiguous.
27Both parties focussed their submissions on the third ground upon which the Plaintiff submits the termination provisions are unenforceable. I will reproduce the impugned part of the agreement below for ease of reference.
Termination Provision
Termination of Employment:
The Organization may terminate your employment without cause at any time upon providing you with the following:
Advance notice, or payment in lieu, in accordance with the Employment Standards Act, 2000 (“ESA”) and any other payments required by such legislation including severance pay, and as well as continuing to provide benefits (which includes participation in the group RRSP) during the applicable statutory notice period; plus
An additional 1-week advance notice of termination or pay in lieu thereof for each completed year of each completed month of employment with the Organization in an incomplete year.
Notwithstanding the above, the Organization may terminate your employment at any time, without notice or pay in lieu thereof or severance pay, for willful misconduct, disobedience or willful neglect of duty that is not trivial and has not be condoned by the Organization. If your employment is terminated for conduct that amounts to just cause at common law but not willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the Organization, you will receive those amounts set out in (a) above but you will not receive the amounts in (b) above. (emphasis added)
28The Plaintiff submits that the “with cause” part of the termination provisions above only references that an employee will receive “the amounts” in (a) and does not set out that they will also continue to be provided benefits during the period of applicable statutory notice. The Plaintiff submits that a reasonable interpretation of this clause is that the terminated employee would only receive items that could be referred to as “amounts” which would exclude the group benefits. She submits that the provision of group benefits is a service provided to the employee rather than an amount of money provided directly to her.
29The Plaintiff argues that the Defendant could have repeated the items listed in paragraph (a)/bullet point one or used language such as all the items in paragraph (a). By changing the wording, and only specifying “those amounts”, the Plaintiff argues that the “presumption of consistent language” suggests that the draftsperson did so intentionally and that different words indicate an intention to refer to something different and should not be interpreted to mean the same thing: Healy v. Gregory, 2009 CanLII 31609 (ON SC), at para. 79.
30Sections 60(1)(a) and (c) of the ESA provide that: “During a notice period under section 57 or 58, the employer, (a) shall not reduce the employee’s wage rate or alter any term or
condition of employment,… (c) shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee’s benefits under the plan until the end of the notice period.”
31The Plaintiff argues that when combined with the following clause in the termination provision: “By signing below, you agree that the forgoing is your full entitlement upon termination of employment pursuant to the common law and employment standards legislation, and that there is no further amount or obligation owing upon termination,” the termination provisions as a whole create a potential violation of subsections 60(1)(a) and
(c) of the ESA and are consequently void.
32The Plaintiff submits that the court should find that the agreement does not respect the minimum standards of the ESA and is therefore void and that she is entitled to common law notice or pay in lieu thereof.
33The Defendant argues that there is no issue with the termination provisions in the employment agreement. They submit that there is no true confusion or difficulty understanding the clause in question and that the Plaintiff’s argument belies the plain intention of the parties, and strains to find ambiguity where none exists.
34The Defendant submits that employment contracts must be interpreted in their context, and in a way that the parties reasonably expected the contracts would be interpreted. They argue that the court must look at the “true intention” of the parties and particularly whether they had any intention to contract out of the ESA: Oudin v. Centre Francophone de Toronto, 2016 ONCA 514, at para. 9; Cook v. Hatch, 2017 ONSC 47, at para. 25. The court must read the termination clause as a whole in order to determine whether the employment contract violates the minimum standards of the ESA and the court cannot take a “piecemeal” approach when analyzing the termination clause: Waksdale v. Swegon North America Inc. 2020 ONCA 391, 446 DLR (4th) 725, at para. 10 (“Waksdale”). Lastly, as already indicated, a contract can only be found void for ambiguity when there is a conflict between two or more reasonable interpretations, and the court should never strain to find ambiguity: Amberber, at para. 63; Chilton, at pg. 169.
35The Defendant submits that the Oxford dictionary definition of the word “amount” includes “number, size, value or extent”. They submit that “amount” is not the same as “payment” and therefore the caselaw relied on by the Plaintiff does not apply to this contract. They argue that the words “those amounts” in the sentence in question clearly include both money and benefits.
Analysis
36In Hampton Securities Limited v. Dean, 2018 ONSC 101 (“Hampton”), Koehnen J. relied extensively on the Ontario Court of Appeal case of Wood v. Fred Deeley Imports Ltd, 2017 ONCA 158, 134 O.R. (3d) 481, and summarized some of the findings in that case in relation to termination clauses as follows at para. 102:
102The Court of Appeal voided the clause in Wood and imposed common law notice requirements even though the overall payments the employer made to the
plaintiff in Wood were larger than those required by the ESA: Wood at para. 21. That had no bearing on whether the termination clause itself contravened the ESA because it is the wording of the clause alone that must be looked at to determine whether it contravenes or complies with ESA standards: Wood at para. 43. In so holding, the Court of Appeal highlighted a number of considerations that are relevant to the interpretation and enforceability of termination clauses including the following:
- The ESA is remedial legislation, intended to protect the interests of employees. Courts should thus favour an interpretation of the ESA that “encourages employers to comply with the minimum requirements of the Act” and “extends its protections to as many employees as possible”, over an interpretation that does not do so: Machtinger v HOJ Industries Ltd., 1992 CanLII 102, [1992] 1 SCR 986 at pg.
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: Machtinger, pg. 1004.
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: Machtinger, pg. 998.
Faced with a termination clause that could reasonably be interpreted in more than one way, courts should prefer the interpretation that gives the greater benefit to the employee: Ceccol v. Ontario Gymnastics Federation (2001), 2001 CanLII 8589 (ON CA), 149 O.A.C.
315; 2001 CanLII 8589 (ON CA), 55 O.R. (3d) 614; Family Counselling Centre of Sault Ste. Marie and District (2001), 2001 CanLII 4698 (ON CA), 151 O.A.C. 35; 2001 CanLII 4698 (ONCA).
37In Hampton, at para. 103, the clause in issue read, “in the event Hampton wishes to terminate your employment without cause they may do so by paying you the minimum amounts required pursuant to the ESA of Ontario in force at the time of termination, no further compensation shall or will be provided. You agree by signing this agreement that such amounts are the total compensation you will receive if terminated without cause.”
38The Defendants in Hampton had argued that “amounts required pursuant to the” ESA must include benefits because benefits are required under the ESA. The court found that the clause did not comply with the ESA as the clause spoke of “paying” Ms. Dean the minimum amounts and “benefits are not paid to employees. They are paid to benefit plans”. Therefore, even if the employer paid Ms. Dean, they would be in breach of s. 60(1) of the ESA: Hampton, at paras. 106-107. The court also noted that the contrast between the language of “paying you” and “no further compensation shall be provided” was telling, with the first part speaking of paying Ms. Dean and the second part having a wider ambit involving payment to other parties, such as to benefit plans.
39In this case, the wording is “you will receive those amounts set out in paragraph (a)”. Paragraph (a) speaks of “providing you” with advance notice or payment in lieu of notice, other statutory payments such as severance pay, “and as well as continuing to provide benefits (which includes participation in the group RRSP) during the applicable statutory notice period”. The other clause indicating that the agreement was Jones’ full entitlement in common law and legislation indicates “that there is no further amount or obligation owing upon termination”.
40There is no dispute that short of “wilful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer”, Jones is entitled to the minimum notice required by section 57 of the ESA: ESA, O. Reg. 288/01 at s. 2(1); Oosterbosch v. FAG Aerospace Inc, 2011 ONSC 1538. There is no suggestion here that she is not entitled to minimum notice.
41To rebut the presumption of an entitlement to common law reasonable notice, employers and employees are free to contractually agree to any notice period, provided the agreement respects the minimum standards stipulated in the ESA. If a contractual notice period runs afoul of the ESA, then the presumption of common law entitlement is not rebutted, and the employee is entitled to reasonable notice of termination at common law: Rossman v. Canadian Solar Inc, 2019 ONCA 992, 444 DLR (4th) 131,at para. 17.
42The Defendant noted that the impugned sentence is in the “with cause” part of the termination provisions and not the “without cause” part of the provisions which are applicable to the Plaintiff. This argument is attractive on its face, but the Court of Appeal in North v. Metaswitch Networks Corporation, 2017 ONCA 790, 417 DLR (4th) 429, at paras. 41-42, 44 made it clear that if there is a provision contracting out of an employment standard, then the entire termination clause is void. I find therefore that even though the alleged issue is with the “with cause” section, any contracting out of the employment standards will void the termination provisions as a whole. See also: Waksdale, at paras. 9- 11.
43The Defendant has acknowledged that when it comes to termination clauses, saving clauses do not save if there is found to be a breach of the ESA. However, the Defendant submits that the clause, “If your entitlement under any part of this letter are less than your minimum entitlements under the ESA, instead of under this letter. In that case, the specifics of the ESA entitlement will be incorporated into this letter without impacting the validity or
applicability of the remaining parts of this letter” should be read to show that the Defendant intended to comply with the ESA.
44The Defendant specifically directed the court to Bertsch v. Datastealth Inc., 2024 ONSC 5593, where the motion judge found at paras. 21-22 that “[t]here is no reasonable alternative interpretation of the relevant clauses here that might result in an illegal outcome ie., there are no reasonable interpretation which could be contrary to the minimum requirements of the ESA and regulations” and that even accepting that any ambiguity will be read to the benefit of the employee “I do not find any ambiguity here”.
45In Bertsch, the court found that the case was alike Amberber where the Court of Appeal found there was no breach. In Amberber, the court of Appeal found that the motions judge had erred by finding that the termination clause was ambiguous and did not clearly exclude any claim for common law damages. The court found that the motions judge had “strained to create an ambiguity where none exists”: para. 63. The Defendant argues that is what the Plaintiff is asking this court to do in this case.
46Courts have acknowledged that employment contracts are often interpreted differently than other types of commercial contracts: Amberber, at para. 20. This stems from the fact that employees are generally in a weaker bargaining position than the employer, and in cases where the employment contract is drafted by the employer the principle of “contra proferentem” applies. This weaker bargaining position remains even where the employee is relatively sophisticated and was offered time to review the contract, as in this case.
47In this context, when I read the termination provision as a whole, I must determine whether the phrase “those amounts” is ambiguous and is open to more than one reasonable interpretation, or is only open to one reasonable interpretation which in this case would include both pay and benefits.
48I find that the language in the “with cause” termination clause in this case contains some of the same weaknesses as the clauses in Woods and Hampton. In the “without cause” part of the termination clause, it is clearly set out that the employee will be provided with both payments and continuation of benefits (including participation in the group RRSP). The “nothing more” clause also specifically sets out “no further amount or obligation.” Therefore, while I find that “those amounts” could include both payments and benefits, that is not the everyday way a reasonable person would consider the provision of a benefit plan as an “amount provided to the employee”. I find that in the context of the sentence that “those amounts” could be reasonably interpreted to include only payments and not the continuation of the benefits plan (including participation in the group RRSP). This would bring the termination provision in conflict with, or in potential conflict with, the ESA, rendering it void.
49Jones is therefore entitled to reasonable notice or pay in lieu of reasonable notice at common law.
(iii) If the termination provisions are not enforceable, what is the appropriate reasonable notice period for the Plaintiff at common law?
50When determining the proper notice to be given to a terminated employee under common law, the court should consider:
The character of the employment
The length of service
The age of the employee, the availability of similar employment, having regard to the experience, training and qualifications of the employee.
Bardal v. Globe & Mail Ltd., 24 D.L.R. (2d) 140, 1960 CanLII 294 (ONSC), at para. 21 (“Bardal”).
51Both parties acknowledged that courts have found that reasonable notice periods for someone in a short-term employment (less than 2 years) must account for the time it takes to secure replacement employment and as such applying a “rule of thumb”, such as one month per year of service, may significantly disadvantage shorter term employees relative to the goal of being tided over until replacement employment can be secured.
52It does not appear to be in dispute that the Plaintiff was 43 when she was terminated and was acting in a supervisory capacity with a high level of responsibility. She was able to secure similar employment in March 2024, about 10 months after her termination.
53The Plaintiff submitted that a notice period of eight (8) months would be appropriate in this case. She submitted that, in part, the lengthier period was justified as the employer had refused to provide a positive reference letter or even a neutral letter speaking of Jones’ employment and duties.
54The Plaintiff provided a summary chart of five cases of short-term employees (5 -19 months) where the court had found reasonable notice at common law of anywhere from 3 to 9 months to be appropriate.
55The Defendant submits that the Plaintiff failed to mitigate her damages. The onus is on the Defendant to prove a lack of mitigation: Lake v. La Presse, 2022 ONCA 742 at para. 7.
56In this case, it took the Plaintiff ten months to find replacement employment. The Defendant submits that the Plaintiff’s own mitigation record demonstrates that similar employment was readily available.
57The Defendant provided a summary chart of five cases of short-term employees (ranging from one to two years and one month) of a similar age and position to the Plaintiff where the court had found reasonable notice at common-law to be from three to four months as appropriate.
58The Defendant argued that two of the Plaintiff’s cases actually support their position. In Hampton, the court found that the ordinary notice period for someone in Ms. Dean’s position would be three to four months. The Court went to the higher end of the scale due to the depressed circumstances in the security industry at the time and then added another two months to compensate her for the unjustified allegations made against her of unauthorized trading. There were other heads of damages in Hampton and the employee did not gain similar employment for approximately 8 years. The appropriate notice period found in Gracias v. Dr. David Walt Dentistry, 2022 ONSC 2967 was found to be 3 months for less than 6 months of employment.
59In Nemirovski v. Socast, 2017 ONSC 5616, the court found that a reasonable notice period under common law was 9 months for a 40-year-old product manager who had been employed 19 months. The court found that the Plaintiff was entitled to notice at the high end of the scale, given the Bardal factors, an oppressive non-compete clause, and the employer’s failure to provide a letter of reference.
60In this case, the Defendant submits that the Plaintiff removed her claim that “as a consequence of the negligent investigation, STSS’ reliance upon the same when terminating her employment and its refusal to provide her with a favourable letter of reference, getting replacement employment will be significantly more difficult” when it amended its statement of claim. Further, the Defendant submits that there is no evidence before the court that Jones ever asked for a letter of reference, much less that one was refused. In those circumstances, the Defendant submits that this should not be considered an aggravating factor when determining the period of reasonable notice. I agree.
61Given the Bardal factors in this case, which include the Plaintiff’s age, responsibilities as a manager, experience, education, and length of service, and upon my review of the caselaw submitted, I find that a reasonable notice period at common law is four months and the Plaintiff is entitled to pay in lieu and an allowance for benefits (and group RRSP) for that period of time.
62The Defendant acknowledged that in these circumstances, mitigation isn’t really a consideration at four months or under, so I do not need to consider the Plaintiff’s efforts to mitigate unless the court was persuaded to order a longer notice period.
63The Plaintiff’s base annual salary at the time of termination was $100,433.84. The Plaintiff submitted that on an annual basis, her Group Benefits were worth $2,998.64 and Group Retirement Savings Plan was worth $2,981.59. The Defendant agreed to the salary amount and suggested that the Benefits for her and her husband were worth about $250/month and the Group RSP was worth approximately $250/month. Therefore, it does not appear to me that there is any real dispute, that Jones is entitled to $33,477.95 in lieu of salary less the
$6,759.97 that she was already paid for a total of $26,717.98. She is also entitled to 3.5 months in lieu of benefits (having subtracted the half month she was provided coverage) in the amount of $1,750.
64The total amount owing to the Plaintiff, having deducted the salary and benefits already received under the contract, is $28,467.98.
CONCLUSION
65Based on the foregoing, I grant the Plaintiff’s motion for summary judgment. I order judgment in the amount of $28,467.98 paid to the Plaintiff in lieu of salary and benefits for a four-month notice period which is net of pay or benefits already provided. The Plaintiff shall also be entitled to pre and post-judgment interest as provided in the Court of Justice Act.
COSTS
66The Plaintiff is entitled to her costs, subject to any Offers to Settle that may have been made. If the parties cannot agree on costs, the Plaintiff may submit her costs submissions within 14 days of this decision. The format shall be no more than three pages, with regular margins, and minimum10 point font, along with a Bill of Costs and any Offer(s) to Settle and caselaw that may be applicable. The Defendant may submit its costs submissions within 21 days of this decision, in the same format, and with the same attachments. No reply will be submitted, unless requested. Submissions must be made to the court office and to my assistant at Grace.Griffin@ontario.ca.
Justice P.J. Moore
Released: April 23, 2025
Appendix “A”
CITATION: Jones v. Strides Toronto, 2025 ONSC 2482
COURT FILE NO.: CV-23-00002320
DATE: 20250423
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DÉSIRÉE JONES
-AND-
STRIDES TORONTO SUPPORT SERVICES
REASONS
Justice P.J. Moore
Released: April 23, 2025