[1]               This is a motion for summary judgment in this wrongful dismissal action. Both parties agree that this is a suitable case for determination of the issues by way of summary judgment. Their dispute concerns the plaintiff’s entitlement, if any, to common law notice of termination, and whether any damages are payable as a consequence, having regard to the plaintiff’s duty to mitigate.

[2]               The defendant, Shoeless Joe’s Limited, is a franchisor for a chain of restaurants located across Ontario. As a franchisor, the defendant is a small company, employing 20 people. Its head office is located in the Greater Toronto Area. In late 2008, the defendant was seeking a candidate for the position of Vice-President, Operations. Through an executive recruiting firm, it was introduced to the plaintiff.

[3]               At the time, the plaintiff was a 41 year-old executive with 20+ years of experience in the hospitality industry. He resided in Quebec. In the fall of 2008 he was employed as President of a Quebec-based food services company that was in bankruptcy protection.

[4]               Following the introduction by the executive recruiter, the plaintiff met with the representatives of the defendant. He subsequently received an email from the defendant’s Chief Operating Officer, enclosing an offer of employment for the position of Vice-President, Operations, with a proposed annual salary of $130,000.00, a car allowance, health benefits and an annual bonus equal to fifteen percent (15%) of the base salary, based on the number of store openings achieved. The position was based in the defendant’s head office.

[5]               The defendant’s offer did not contain any terms or provisions with respect to notice of termination, nor was it conditional upon the plaintiff executing a written contract of employment containing a termination provision. At no point in time did the parties negotiate, or discuss, terms or conditions that limited or otherwise varied the implied contractual right to reasonable notice of termination.

[6]               The plaintiff accepted the defendant’s offer by email. He relocated to Toronto and started his new job on February 2, 2009. He never signed a contract of employment, nor was he ever asked to do so. This was an omission on the part of the defendant’s Chief Operating Officer, who was assigned the responsibility of having the plaintiff sign the standard form employment agreement used by the defendant for its senior employees. Indeed, before and after the plaintiff’s employment was terminated, the President of the defendant believed and insisted that the plaintiff had signed such a contract and that he was bound by a termination provision contained in it. The statement of defence filed by the defendant pleaded and relied upon such a contract. Ultimately, the defendant conceded that it was unable to produce a contract signed by the parties; before me, defence counsel acknowledged that the defendant was no longer relying on that defence.

[7]               The plaintiff’s role as Vice President, Operations was a senior operations position, responsible for operational decisions, the implementation of programs and training and for overseeing four other employees, namely, a Director of Operations and three Regional Managers. The plaintiff supervised these employees on a day-to-day basis. His duties included assessing subordinates, measuring their performance, demanding results from them, cost control, service, labour costs, local marketing and gathering profit and loss statements from franchisees. The plaintiff was not responsible for the decisions of the company generally. He had no authority to hire and fire employees, set or adjust employees’ compensation or discipline employees. He worked part of each week at the defendant’s head office, and spent the balance of each work week travelling and meeting with the defendant’s franchisees. The plaintiff reported to the Chief Operating Officer, who in turn reported to the President.

[8]               During his employment with the defendant, the plaintiff routinely received positive feedback from his immediate supervisor, the Chief Operating Officer. He was never advised of any shortcomings or concerns regarding his work performance. Nevertheless, on July 21st, 2009, the plaintiff received a letter from the defendant informing him that his employment was being terminated, without cause, effective immediately. Although the letter did not cite specific reasons for the termination, in his affidavit the defendant’s President stated:

[9]               In the letter, the defendant purported to rely on the employment contract that its President believed had been signed by the plaintiff, which provided that the defendant could terminate the plaintiff’s employment by providing him with one week’s notice of termination and the continuation of his benefits for this period. The plaintiff was paid one week’s pay in lieu of notice, totalling $2,500, which was his entitlement pursuant to the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). Thereafter the defendant provided the plaintiff with a cheque for accrued vacation pay and his Record of Employment. The plaintiff did not receive any additional payments, nor did he sign a release.

[10]           After he received the letter of termination, the plaintiff attempted without success to obtain from the defendant and its lawyer a copy of the employment contract upon which the defendant relied, insisting that he had never signed one. When he was unable to do so he retained counsel. This litigation followed.

[11]           Before it served its statement of defence, by letter dated October 9, 2009 from its counsel the defendant offered the plaintiff the opportunity to work for it as a consultant earning compensation equal to approximately 50% of his former income. The defendant’s offer of consulting work guaranteed the plaintiff $5,000 per month, for three months.  The plaintiff declined, unless the defendant agreed to terms that it found unacceptable, which meant there was no agreement. The plaintiff continued his job search, and ultimately became re-employed in May 2010.

[12]           As noted at the outset of these reasons, there are two issues between the parties:

[13]           The position of the plaintiff is that he is entitled to a notice period commensurate with his level of income, age, level of responsibility and seniority in the company and performance. In his factum the plaintiff submits that the appropriate period of notice is in the order of six months.

[14]           The defendant submits that the plaintiff was employed for such a short time that his ESA entitlement was equivalent to his common law entitlement, and thus he has been fully paid. Any longer notice period cannot be justified on the facts of this case. The action should therefore be dismissed.

[15]           The classic statement for assessing appropriate notice in the context of termination of an employment relationship comes from Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC), [1960] O.W.N. 253 (H.C.), and was approved by the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986. In determining the length of notice, the court should consider the character of employment, the length of service, the age of the employee, and the availability of similar employment having regard to the experience, training, and qualifications of the employee.

[16]           As Echlin J. pointed out in Laszczewski v. Aluminart Products Ltd., (2007), 62 C.C.E.L. (3d) 205 (Ont. S.C.J.) at paragraph 61:

[17]           In support of its submission that the plaintiff is entitled to no greater notice period than that provided by the ESA, the defendant relies mainly on the relatively brief length of the plaintiff’s employment, approximately five and one-half months. It points to a number of decided cases in which notice periods in the order of one month or less have been awarded to former employees who held their positions for less than a year. The summary provided by counsel for the defendant did not list the income level of those individuals, but my review of those decisions indicates that in most of them the plaintiff’s salary was in the $25,000 range, with two cases in which it was closer to $50,000. The one case mentioned in the defendant’s table that involved a base salary in the order of magnitude of Mr. Harvey’s, $100,000, awarded a notice period of 3.5 weeks to an employee who worked less than 2 months. By way of further comparison, in O'Neil v. Brothers Potteries Ltd., [2003] O.J. No. 3142 (Ont. S.C.J.), a 46 year old salesman employed for just three weeks was granted damages equivalent to four weeks' notice.

[18]           The defendant argues that granting a notice period in excess of one month would “open the floodgates” to claims by short term employees. I do not accept that submission. Firstly, the Bardal factors have stood the test of time for half a century, and have been repeatedly applied and accepted by trial and appellate courts in determining appropriate notice periods in a wide range of cases. Where trial judges have been too lenient or too strict, appellate courts have stepped in to correct errors in the application of the principles. Secondly, as the defendant unsuccessfully attempted in the present case, it remains open to an employer to protect itself by requiring the prospective employee to agree to a contractual termination arrangement that would take their relationship out of the common law notice scheme.

[19]            Turning to the application of the Bardal factors in the present case, I agree with the defendant that the relatively short length of service (5.5 months) supports a relatively short notice period. That said, the character of the plaintiff’s employment was clearly at the senior level, having regard to his salary ($130,000 plus a potential bonus of up to 15% more), his responsibilities, and his reporting relationship. These factors support a longer notice period. I consider his age (41 at time of hiring) to be a neutral factor. The availability of similar employment is reflected in the length of time it took Mr. Harvey to secure replacement work (approximately 10 months), and also militates in favour of a longer notice period. I am also conscious that Mr. Harvey relocated to the Toronto area from Quebec to take up employment with the plaintiff, and moved back to Quebec after he was dismissed.

[20]           Having regard to the foregoing considerations, I conclude that a notice period of 2.5 months (11 weeks) is reasonable and appropriate.

[21]           Mr. Harvey was dismissed on July 21, 2009. In my view, he was contractually entitled to notice of termination which would have been effective as of October 6, 2009. There is no suggestion by the defendant that he failed to mitigate his damages over that period. The focus of the defendant’s submissions was that the plaintiff’s refusal to perform consulting work for it amounted to a failure to mitigate. The defendant’s proposal for that work, however, was not made until October 9, 2009. That date was outside the notice period that I have found, and thus the defendant’s offer is irrelevant for purposes of this issue. The defendant’s failure to mitigate argument therefore fails.

[22]           To the extent that the plaintiff received income from the defendant over the notice period, the defendant is entitled to credit for that payment. To the extent that the plaintiff suffered a loss of income over that timeframe, the defendant must compensate him. If the parties are unable to agree upon the correct calculation, they may arrange a conference call with me through my assistant.

[23]           In relation to costs on the occasion of the argument before me, the parties submitted their respective Bills of Costs. Based on those submissions, I invite them to resolve the issue of costs. Should they be unable to so, I direct them to notify me within ten days whether there are any Offers to Settle that might affect my decision on costs. Based on that added information and the written material previously filed, I will make my order as to costs.