Month: August 2022

If you’ve lost your job recently, it is strongly recommended to maintain a log of your efforts to find new employment. This could help you avoid the same fate as the Plaintiff from the recent Toy v. 0954516 BC Ltd., decision. Unfortunately, Mr. Toy did not mitigate his losses by taking reasonable steps to find similar or comparable employment. As a result, his notice entitlements were reduced accordingly.

Toy v. 0954516 BC Ltd: The Facts

The Plaintiff, Mr. Sidney Toy, was employed as a fuel and scale attendant with the Defendant at Vedder’s Liquefied Natural Gas Station (“Vedder”) when he was dismissed without cause in late December 2020. He was employed with Vedder for approximately 5 years and was 61 years old when he terminated. Following his wrongful dismissal, Mr. Toy sued Vedder for damages in lieu of notice. Justice Walkem then needed to determine the appropriate length of the notice period, and, significantly for this discussion, whether Mr. Toy’s mitigation efforts to find comparable employment were adequate enough.

Mr. Toy’s duties involved refuelling trucks and other vehicles, yard cleaning, customer service of trucking customers, invoicing customers and data entry. Vedder argued that these duties provided Mr. Toy with skills that were highly transferrable to other retail and administrative positions. Vedder also argued that comparable jobs were readily available.

Mr. Toy gave evidence that he only applied for 3 jobs that he found on the internet and in newspaper:

• Friesen Group warehouse worker (interviewed but not hired);
• Johnston’s Meat warehouse worker (interviewed but not hired); and
• McDonald’s crew member (did not hear from them after the application).

In March of 2022, Mr. Toy was finally able to secure employment as a security worker. He did not earn any other income from when he was laid off in December of 2020 to this point.

Analysis

The purpose of reasonable notice is to provide the employee with a fair opportunity to find similar or comparable employment. The dismissed employee then has a duty to mitigate their losses by actively seeking out similar employment. If a dismissed employee fails to take reasonable steps to mitigate their losses, notice entitlements may be reduced.

Vedder argued that there were similar employment positions readily available for Mr. Toy that he should have applied for. Vedder listed “chicken catcher”, “power washer”, general labourer”, “painter”, or “bricklayer”, but these jobs do not necessarily align with his skills he learned while employed with the Defendant. Justice Walkem quipped that she does not envision Mr. Toy – who is 62 years old – pursuing the profession of chicken catcher.

However, simply because a job requires less formal training or education, and may be considered unskilled, does not mean that employee should have to apply for any unskilled position. There must be some relevance, or match in skillset to the position.

As stated above, Mr. Toy only applied for 3 jobs following his dismissal. Vedder argued that this level of effort was not reasonable, stating his job search efforts were “non-existent.” Justice Walkem noted that the number of applications is not the only way to measure the job search effort level. It cannot be the sole determinant on which reasonableness is judged. However, while the number of applications is not the only measurement for reasonableness, merely making 3 applications was not enough in these particular circumstances. Justice Walkem also believed a few computer searches and driving around nearby looking for available employment was insufficient. Had he more actively searched for comparable work, Mr. Toy would likely have secured employment earlier than March of 2022.

As such, Mr. Toy did not take active steps to search for reasonably similar employment.

The Order and Main Takeaway

Mr. Toy failed in his duty to mitigate his losses following dismissal by not taking active steps to search for reasonably similar employment. As a result, the notice period awarded to the Plaintiff was reduced from 5.5 months, to 3.5 months (2-month reduction for lack of mitigation efforts).

This decision is a good reminder to dismissed employees to ensure they are making reasonable efforts to search for similar employment and to keep a log of their attempts.

It is fair to assume that if one behaves poorly, their actions are more likely going to result in poor consequences. In the legal realm, courts can penalize parties for their bad behaviour with cost decisions. This was perfectly exemplified in the Gracias v. Dr. David Walt Dentistry decision released on July 12, 2022.

Gracias v. Dr. David Walt Dentistry: The Facts

The Plaintiff, Sonia Gracias, was dismissed without cause from her job as a dental hygienist with the Defendant, Dr. David Walt Dentistry Professional Corporation (“Walt Dentistry”). As a result, she sued Walt Dentistry for: (a) $50,000 in damages for discrimination for contraventions of the Ontario Human Rights Code; (b) $50,000 for common law damages for wrongful dismissal; and (c) $50,000 in punitive damages.

Walt Dentistry denied the human rights discrimination claim and also pleaded that it could have fired Ms. Gracias for egregious employee misconduct. In other words, The Defendant is alleging Ms. Gracias engaged in conduct that could have resulted in her termination for cause.

Following examinations for discovery, Ms. Gracias abandoned her human rights claim (without substantiating the allegations) and claim for punitive damages. Only a wrongful dismissal claim for a 7-month notice period compensation remained. The Plaintiff believed she was entitled to common law damages in lieu of notice because the employment contract unlawfully contracted out of the Employment Standards Act. Likewise, Walt Dentistry amended the Statement of Defence, abandoning the allegation of employee misconduct. The Defendant’s main argument was that the terms of her employment contract barred Ms. Gracias from claiming more than her Employment Standards Act entitlements.

Both Sides Behaved Poorly

Justice Perell described the two sides as dogs released in a litigation war. The Plaintiff and the Defendant were going for each other’s jugular. The persistently poor behaviour Ms. Gracias and Walt Dentistry engaged in was outlined by the court.

The following is a summary of the Plaintiff’s poor behaviour:

1.  Gracias made very serious allegations of Ontario Human Rights Code violations without substantiating them whatsoever;
2.  Gracias ultimately received an award of $17,587. This amount is within the monetary jurisdiction of the Small Claims Court (under $25,000), which means the Court may order that the Plaintiff shall not recover any costs. Yet, she still asked for partial indemnity costs of approximately $35,000; and
3.  Gracias did not take her important responsibilities to produce documents and answer undertakings seriously.

The following is a summary of the Defendant’s poor behaviour:

1.  Walt Dentistry submitted that Ms. Gracias falsified her evidence of mitigation efforts with fabricated records of the job applications she made over the internet. The Defendant provided no evidence of this;
2.  Walt Dentistry “had the nerve” to request its costs be paid in the amount of $17,387.88, which would have essentially ‘set-off’ the award to Ms. Gracias; and
3.  Walt Dentistry alleged that Ms. Gracias engaged in egregious misconduct worthy of termination with cause, without providing any evidence of this.

The Order and Main Takeaway

Justice Perell was unimpressed with the behaviour of the two sides. As a result of their actions, he decided it was appropriate that there should be no order as to costs.

The language Justice Perell used to describe the parties behaviour gave a clear indication of his feelings. Language such as ‘releasing the dogs of litigation’, ‘going for the jugular’, ‘chutzpah’, ‘audacity’, ‘gall’, and ‘the nerve’, make it evident that the actions of both parties were unacceptable.

As one can see, there are serious consequences for nonsense allegations and other poor conduct that parties may attempt to use in order to raise potential damages awards. Both clients and lawyers should keep this in mind while moving through litigation process.