[1]               The Plaintiff, Dolores Adjemian, sues the Defendant, Brook Crompton North America (“Brook Crompton”), her former employer, for damages for wrongful dismissal.

[2]               This is a motion for summary judgment in her action, which is governed by the rules for a simplified procedure.

[3]               For the reasons that follow, I am satisfied that this case is appropriate for a summary judgment under Rule 76.07 (9) and that Ms. Adjemian should have a judgment in the amount of $50,000.00, plus one month of pre-judgment interest, plus costs on a partial indemnity scale of $14,157.64. These awards are subject to the terms more particularly described below.

[4]               Ms. Adjemian had been an employee of what is now Brook Crompton for 22.5 years. It is a manufacturer of electronic motors for world distribution, and it has a head office in Toronto, Ontario.  

[5]               Ms. Adjemian was dismissed without cause on January 24, 2008.

[6]               She began her employment as an entry level employee, and at the time of dismissal, she was an information and technology administrator, accounts payable clerk, and inventory receiving clerk. Her position was not managerial nor supervisory, and she reported directly to Brook Crompton’s Operations Manager.

[7]               Ms. Adjemian was dismissed because Brook Crompton has gone through some difficult times that required downsizing of personnel, and Ms. Adjemian was one of the employees affected.

[8]               Various officers of Brook Crompton wrote very favourable reference letters commending Ms. Adjemian as a candidate for employment.

[9]               At the time of her dismissal, she was 47 years of age. Her base salary was $47,324.00, but she deposed that Brook Crompton had announced a 4% non-discretionary salary increase for all employees. She was enrolled in a comprehensive benefits plan that included medical, dental, vision, short-term and long-term disability payments, and life insurance all paid for by Brook Crompton. She had 4 weeks vacation each year.

[10]           Mr. Paolo Maggiotto, who is the Vice President of Operations and Finance for Brook Crompton, deposed that Ms. Adjemian’s salary at the time of her dismissal was $47,323.00 including a one-time discretionary bonus granted in 2007. He does not deny Ms. Adjemian’s evidence that a 4% salary increase was announced. Based on the evidence, I find as a fact that had Ms. Adjemian not been dismissed, her salary would have been $49,216.96 per annum plus benefits.

[11]           In 2007, she received a bonus of $2,297 and Brook Crompton made pension contributions of $4,132.

[12]           After her dismissal, Brook Crompton paid her four months salary (16 weeks) and continued her benefits for four months.

[13]           After her dismissal, Ms. Adjemian has attempted to find employment but so far without success. She provided a comprehensive brief documenting her considerable efforts to find a new job. She has applied for 120 positions in various industries and job types and she has had 9 job interviews.

[14]           The question to be decided on this motion is whether Ms. Adjemian is entitled to a summary judgment under rule 76.07 (9), which states:

[15]           The test for a summary judgment is less stringent under rule 76.07 (9) than the test for a summary judgment for a normal action under Rule 20. Rule 76.07 (9) has a lower threshold than the test for a normal action: Bradley-Kelly Construction Ltd. v. Ottawa-Carleton Regional Transit Commission (1996), 1996 CanLII 8038 (ON SC), 30 O.R. (3d) 301 (Gen. Div.); Opportunity Labour Agency v. Pax-All Manufacturing Inc., [2007] O.J. No. 1820 (S.C.J.).

[16]           The summary judgment test for the simplified procedure does not preclude the judge hearing the motion from making findings of fact including credibility findings if that can be done fairly and justly: Newcourt Credit Group Inc. v. Hummel Pharmacy Ltd. (1998), 1998 CanLII 18859 (ON SC), 38 O.R. (3d) 82 (Div. Ct.); Diversitel Communications Inc. v. Glacier Bay Inc. (2003), 42 C.P.C. (5^th) 196 (Ont. S.C.J.), affd. [2004] O.J. No. 1702 (C.A.).

[17]           Unlike a motion for summary judgment in a normal action, where the determinant is whether there is a genuine issue for trial, the focal point under the simplified procedure is whether, even if there is a genuine issue for trial, the court can fairly and justly decide the action on the motion and without a trial: Robertson v. Ball (1996), 1996 CanLII 8228 (ON SC), 31 O.R. (3d) 30 (Gen. Div.); Giardino v. Frum Development Group (1998), 20 C.P.C. (4^th) 368 (Ont. Gen. Div.); Masini USA, Inc. v. Simsol Jewellry Wholesale Ltd. (2003), 2003 CanLII 41000 (ON SC), 67 O.R. (3d) 229 (S.C.J.); Braithwaite Technology Consultants Inc. v. Blanketware Corporation (2004), 2004 CanLII 30089 (ON SC), 72 O.R. (3d) 611 (S.C.J.).

[18]           Although the test for a summary judgment is more onerous under Rule 20 than under Rule 76, Rule 20 has been used to grant judgment in a wrongful dismissal action; see: Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505(C.A.); Bullen v. Proctor & Redfern Ltd. (1996), 1996 CanLII 8135 (ON SC), 20 C.C.E.L. (2d) 36 (Ont. Gen. Div.); Ducharme v. Cambridge Stamping Inc. 2008 CanLII 19499 (ON SC), [2008] O.J. No. 1666 (S.C.J.). It follows that if the stricter Rule 20 test can be satisfied for a wrongful dismissal claim, then a summary judgment under rule 76.07(9) may also be available for a wrongful dismissal claim brought pursuant to Rule 76.

[19]           I am satisfied that Ms. Adjemian is entitled to a summary judgment under rule 76.07 (9). Moreover, I am satisfied that she meets the more stringent test imposed by Rule 20. It is my conclusion that: (a) there is no genuine issue for trial;  (b) I am able to decide the issues in the action without cross-examination; and (c) it would not be otherwise unjust to decide the issues on the motion. The case at bar is unlike Brown v. Confidential Recycling Services Ltd., [1998] O.J. No. 1892 (Gen. Div.) and Wanigaratne v. Zucotto Wireless Inc., [2003] O.J. No. 592 (S.C.J.) where the court was unable to decide the case without a trial.

[20]           Brook Crompton submits that there are three issues worthy of a trial: (1) the adequacy of Ms. Adjemian’s efforts to mitigate; (2) the characterization or nature of her employment; and (3) the assessment of her damages.

[21]           Notwithstanding, its arguments to the contrary, I find no genuine issues for trial in the case at bar. There is overwhelming evidence that Ms. Adjemian had made and continues to make reasonable efforts to mitigate her loss. Brook Crompton wishes to cross-examine her to establish that she could have done more, but that is not a genuine issue for trial because mitigation need not be perfect, it need only be reasonable, and on this motion for summary judgment, Brook Crompton has not remotely shown that Ms. Adjemian’s efforts to mitigate her losses were not reasonable. See: Red Deer College v. Michaels (1975), 1975 CanLII 15 (SCC), 57 D.L.R. (3d) 386 (S.C.C.); Somir v. Canac Kitchens, a Division of Kohler Canada Co., [2006] O.J. No. 5053 (S.C.J.); Furuheim v. Bechtel Canada Ltd., [1990] O.J. No. 746 (C.A.).

[22]           Further, there is no genuine issue for trial about the characterization of her employment. The court can accept Brook Crompton’s characterization of her employment and then move on to decide the appropriate notice period for such employment.

[23]           Once the two purported issues are resolved - and, in my opinion, they can be properly resolved on this motion for summary judgment - there is no remaining issue that requires a trial.

[24]           Ms. Adjemian seeks damages for wrongful dismissal. An employee who is wrongfully dismissed is entitled to recover the value of all losses arising from the failure to have been given reasonable notice of the termination of his or her employment: Koor v. Metropolitan Trust Co. of Canada, [1993] O.J. No. 1476 (Gen. Div.); Earl v. Northern Purification Services (Eastern) Ltd., [1980] O.J. No. 160 (H.C.J.); Davidson v. Allelix Inc (1991), 1991 CanLII 7091 (ON CA), 86 D.L.R. (4^th) 542 (Ont. C.A.); Locke v. Avco Financial Services Can. Ltd. (1987), 1987 CanLII 7330 (NB KB), 85 N.B.R. (2d) 93 (Q.B.).

[25]           Where an employee is dismissed without cause, he or she is entitled to reasonable notice of termination or pay in lieu of notice. In determining the length of notice, the court should consider: (a) the character of employment; (b) the length of service; (c) the age of the employee; and (d) the availability of similar employment having regard to the experience, training, and qualifications of the employee: Machinter v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986; Cronk v. Canadian General Insurance Co. (1995), 1995 CanLII 814 (ON CA), 25 O.R. (3d) 505(C.A.); Bardal v. Globe & Mail, 1960 CanLII 294 (ON SC), [1960] O.W.N. 253 (H.C.).

[26]           Ms. Adjemian seeks damages calculated on the basis of a notice period of 16 months. Having regard to the authorities provided by her to provide some guidance as to the appropriate notice period for plaintiffs in comparable situations, I am satisfied that this is a fair notice period. See: Patterson v. Boudreau Sheet Metal (1999) Inc. (2004), 2004 NBBR 99 (CanLII), 272 N.B.R. (2d) 119 (Q.B.); Corey v. Dell Chemists (1975) Ltd., [2006] O.J. No. 2302 (S.C.J.); Bramble v. Medis Health and Pharmaceutical Services Inc. (1998), 1999 CanLII 13124 (NB CA), 175 D.L.r. (4^th) 385 (N.B.C.A.); Polak v. Surrey Memorial Hospital Society (1996), 1996 CanLII 884 (BC SC), 17 C.C.E.L. (2d) 283 (B.C.S.C.); Bullen v. Proctor & Redfern Ltd., supra; Webster v. British Columbia Hydro and Power Authority (1992), 1992 CanLII 1087 (BC CA), 91 D.L.R. (4^th) 272 (B.C.C.A.); Brown v. Law Society of Upper Canada; Kapelus v. University of British Columbia, [1998] B.C.J. No. 1559 (S.C.); Bodnarus v. Buchok (2000), 2000 MBCA 53 (CanLII), 148 Man. R. (2d) 81 (C.A.); Banavage v. Taylor Forge of Canada, [1995] O.J. No. 4541 (Gen. Div.); and Fedele v. Windsor Teachers Credit Union, [2000] O.J. No. 2755 (S.C.J.).

[27]           Keeping in mind the severance payments already made to her, I calculate her damages to be $61,944.65, broken down as follows:21

[28]           Although Ms. Adjemian is entitled to judgment, her judgment has come so quickly that it comes during the period in which she continues to have an obligation to mitigate. In these circumstances, the court can impose a trust requiring her to account for any mitigatory earnings. This approach was used in Bullen v. Proctor & Redfern Ltd., supra and Correa v. Dow Jones Markets Canada (1997), 1997 CanLII 12268 (ON SC), 35 O.R. (3d) 126 (Gen. Div.) and should be employed for this case.     

[29]           Ms. Adjemian also seeks costs and pre-judgment interest, and in my opinion, she is entitled to both.

[30]           At the hearing, counsel provided me with draft bills of costs. On a partial indemnity basis, Ms. Adjemian seeks the sum of $14,157.64 all inclusive of counsel fee, disbursements and GST.

[31]           In my opinion, in the circumstances of this case, the sum of $14,157.64, all inclusive, is a fair and reasonable sum for costs. This award, however, is subject to adjustment if there were offers to settle under Rule 49.

[32]           If the parties cannot agree about the application of the Offer to Settle Rule, then they may make submissions in writing beginning with Ms. Adjemian within 10 days of the release of these Reasons for Decision.

[33]           Judgment accordingly.