[1]          The five plaintiffs are former employees of the defendant, Canac Kitchens.  They were all dismissed at the same time.  They have brought separate wrongful dismissal actions.

[2]          The parties have agreed to resolve the actions by way of a summary judgment motion.  The five motions were heard together, pursuant to the order of Campbell J., dated October 1, 2008.

[3]          The plaintiffs were all long term employees of Canac. 

[4]          None of the plaintiffs was employed pursuant to written employment contracts.  At the time of their dismissal, they were employed either as a team leader (Mr. Cardenas, Mr. Cerda and Mr. Henriquez) or a shift supervisor (Mr. Silva and Mr. Cabrera-Munoz ).

[5]          The plaintiffs were dismissed, without cause, on February 19, 2008, due to a slowdown in Canac’s production requirements.  Canac closed its Canadian manufacturing operations a few months later, on May 27, 2008.

[6]          At the time of their dismissals, each plaintiff was offered a severance package.  None of the plaintiffs accepted the offers.  As a result, they have received only their statutory notice and severance payments.  Canac continued some, but not all, of the plaintiffs’ benefits during the statutory notice periods.

[7]          None of the former employees has found employment since their dismissal. 

[8]          Canac does not dispute that the plaintiffs were dismissed without cause.  In order to determine damages, the following issues need to be resolved: (i) the period of reasonable notice; (ii) the treatment of overtime; (iii) compensation for benefits; (iv) mitigation; and (v) the method of payment.

[9]          I will address each of these issues in turn, dealing first with the general principles.  I will then apply those principles to the facts of each case.

[10]      In considering these issues, I have had the benefit of several other cases involving dismissals at Canac.  While each plaintiff’s claim must be assessed based on its particular facts, the decisions in these other cases are particularly helpful because they deal with similar jobs and similar circumstances. (see Somir v. Canac Kitchens, a Division of Kohler Canada Co. (2006), 2006 CanLII 42369 (ON SC), 56 C.C.E.L. (3d) 234 (Ont. Sup. Ct.); Munoz v. Canac Kitchens, a Division of Kohler Canada Co. (2008), 2008 CanLII 63151 (ON SC), 70 C.C.E.L. (3d) 72 (Ont. Sup. Ct.); Yanez v. Canac Kitchens, a Division of Kohler Canada Co. (2004), 2004 CanLII 48176 (ON SC), 45 C.C.E.L. (3d) 7 (Ont. Sup. Ct.); Navarro v. Canac Kitchens, a Division of Kohler Canada Co. (2008), Toronto 07/339514 (Ont. Sup. Ct.); Gutierrez v. Canac Kitchens, a Division of Kohler Canada Co. (2008), 2009 CanLII 593 (ON SC), 70 C.C.E.L. (3d) 231 (Ont. Sup. Ct.); Yiu v. Canac Kitchens, a Division of Kohler Canada Co., [2009] O.J. No. 871 (Sup. Ct.); Donoso v. Canac Kitchens Ltd. (2005), Toronto 03-CV-257758 CM2 (Ont. Sup. Ct.); Zaman v. Canac Kitchens Ltd. (Kohler Ltd.), 2009 CanLII 9413 (Ont. Sup. Ct.); Moldovanyi v. Canac Kitchens Ltd., a Division of Kohler Ltd., [2009] O.J. No. 711 (Sup. Ct.); Mahesuram v. Canac, [2009] O.J. No. 221) (Sup. Ct.)).

[11]      An employee, on dismissal without cause, is entitled to reasonable notice of termination or pay in the absence of reasonable notice. 

[12]      The factors that are relevant to determining the reasonable period of notice are: character of employment; length of service; employee’s age; availability of similar employment; and experience, training and qualifications (Bardal v. Globe & Mail Inc. (1960) 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (H.C.), at 145).

[13]      In determining the reasonable period of notice for each plaintiff, I have reviewed the decisions in the comparable Canac cases and considered each plaintiff’s circumstances, in particular, his position at Canac, age and years of service. 

[14]      There is a useful summary of the notice periods determined in other Canac cases in a chart that is attached as an appendix in Zaman.  In that chart, Brown J. compared the various decisions according to the plaintiff’s position, age, years of service, amount paid by Canac in months, and the reasonable notice period set by the court.

[15]      Courts in other cases involving the dismissal of team leaders by Canac have decided reasonable notice as follows: 16 months’ notice for an employee aged 46 and employed for 20 years (Somir); 12 months’ notice for an employee aged 53 and employed for 13 years (Munoz); 12 months’ notice for an employee aged 40 with 15.5 years of service (Yanez); 15 months’ notice for an employee aged 47 with 20.25 years of service (Navarro); 12 months’ notice for an employee aged 50 with 13 years of service (Gutierrez);and 9 months’ notice for an employee aged 37 with 10 years, 11 months of service (Yiu); .

[16]      One Canac case involved a supervisor: Donoso.  The plaintiff in that case was 46 years of age, had been employed for 17.5 years and received 17.5 months’ payment in lieu of notice. 

[17]      Mr. Cardenas was employed at Canac for 23 years.  He was 60 years of age at the time of his dismissal.  Mr. Cardenas became a team leader in 2000, a position that he held until his dismissal in 2008. 

[18]      Team leaders at Canac were responsible for: supervising a number of employees; scheduling and delegation of work; and monitoring compliance with safety standards.  The position has been described as the “most junior management category at Canac” (Somir at para. 42).  

[19]      Canac submits that the position of team leader did not require specialized knowledge and the skills associated with the position were transferable to other businesses and operations.

[20]      Mr. Cardenas was responsible for a team of approximately 20 production line employees.

[21]      Mr. Cardenas was older and had more years of service than the employees in the cases noted above.  Applying the factors in Bardal and considering cases with analogous fact situations, I conclude that 22 months is a reasonable period of notice. 

[22]      Mr. Cerda was 51 years of age at the time of his dismissal and had been employed at Canac for 21 years.   He was a team leader at Canac since 1996.  His job duties were the same as those of Mr. Cardenas. 

[23]      Mr. Cerda was responsible for the supervision of and delegation of work to approximately 50 production line employees.

[24]      Given his position, years of employment and age, I conclude that reasonable notice is 19 months.

[25]      Mr. Henriquez was 54 years of age when he was dismissed, having worked at Canac for 14 years. 

[26]      He was a team leader since 1996 and was responsible for the supervision of and delegation of work to approximately 20 employees.  As a team leader, his job duties were similar to those of Mr. Cardenas and Mr. Cerda.

[27]      In light of his position, age and years of service, I conclude that reasonable notice is 12 months.

[28]      Mr. Silva was 43 years of age at his dismissal, having worked at Canac for 27.5 years. 

[29]      He was promoted to the position of team leader in 1992 and then to the position of shift supervisor in 1997.  He was a shift supervisor at the time of his dismissal. 

[30]      The position of shift supervisor at Canac was one above that of team leader.  The shift supervisor reported to the production manager who reported to the plant manager.  A shift supervisor had responsibility for: forecasting production demands; direct manufacturing efforts of a production line; scheduling and delegation of work; monitoring compliance with safety standards; and performance management.

[31]      Canac submits that the position of supervisor did not require specialized knowledge and the skills associated with the position were transferable to other businesses and operations.

[32]      Mr. Silva was responsible for the supervision of one of Canac’s four production lines which, at times, was as large as 65 employees. 

[33]      Given, in particular, Mr. Silva’s position, age and significant number of years of service, I conclude that a reasonable period of notice is 26 months.

[34]      Mr. Cabrera-Munoz was 52 years of age at the time of dismissal, with 21 years of service.  In 1992, he has promoted to the position of team leader.   In 2000, he was promoted to the position of shift supervisor, a position he held until his dismissal.

[35]      Mr. Cabrera-Munoz’s job duties as a supervisor were similar to those of Mr. Silva.  He was responsible for the supervision of one of Canac’s four production lines which, at times, was as large as 65 employees. 

[36]      Given, in particular, his position, age and years of service, I conclude that a reasonable period of notice is 21 months.

[37]      The plaintiffs submit that the amount of damages should be based on an average of their income for the three years prior to their dismissal (2005-2007) and that this income should include both base pay and overtime.

[38]      Canac’s primary submission is that any damages should be based on each plaintiff’s annual base pay without reference to any overtime pay.  In the alternative, Canac submits that the amount of income should be based on the fact that there would have been limited opportunity to work overtime between the plaintiffs’ dismissal and the plant closure and no opportunity to work overtime after the plant closure.

[39]      In Somir, H.J.W. Siegel J. used the amount of income earned in the year prior to the plaintiff’s dismissal.  In Munoz at para. 53, Strathy J. considered the following factors: the important role that overtime played in the plaintiff’s overall compensation; his tenure and experience with the company; and the fact that some overtime was worked by other team leaders.  He estimated overtime at 12 hours per month, an amount that was less than the overtime worked in the years prior to his dismissal.

[40]      In Gutierrez, Lederer J. rejected the argument that, had Mr. Gutierrez stayed with Canac, there would have been no overtime, because this was not an option.  There was no job; the factory had closed.  He used the plaintiff’s average income earned in the three years prior to dismissal.

[41]      Each of the five plaintiffs worked considerable overtime over the years, although the amount of overtime decreased in the years prior to their dismissal. 

[42]      At the time of his dismissal, Mr. Cardenas’ annual base pay was $51,114.  Because of substantial overtime worked, his actual income was considerably greater.

[43]      Between 2005 and 2007, his average annual income, including overtime pay, was $76,801.  In 2007, the year prior to dismissal, his income was $62,638.97, that is, lower than the preceding two years.

[44]      Canac has calculated that Mr. Cardenas would have worked about 45.9 hours overtime between dismissal and plant closing, based on the hours he worked in 2008 prior to dismissal.  This translates into additional compensation of $1,538.10.  Canac submits that Mr. Cardenas and the other plaintiffs should not be given any credit for overtime after May 2008, when the plant closed.

[45]      At the time of his dismissal, Mr. Cerda’s annual base pay was $59,121.  Between 2005 and 2007, his average income, including overtime, was $68,387.  In 2007, the year prior to his dismissal, his income, including overtime, was $62,988.40, the lowest of the three years.

[46]      Canac calculates that Mr. Cerda would have worked an addition 6.9 hours overtime up to the date of the plant closing and nothing thereafter.  This results in additional compensation of $267.44.

[47]      At the time of his dismissal, Mr. Henriquez’s annual base pay was $51,365.  Between 2005 and 2007, his average income, including overtime, was $79,093.  His income in 2007, including overtime, was $62,987.31.

[48]      Canac calculates that Mr. Henriquex would have worked 85.5 hours overtime up to the date of the plant closing and nothing thereafter.  This results in an additional $2,879.15.

[49]      At the time of his dismissal, Mr. Silva’s annual base pay was $63,100.  Between 2005 and 2007, his average income, including overtime, was $74,980.  His income in 2007 was $68,356.77.

[50]      Canac calculates that Mr. Silva would have worked 30 hours overtime up to the date of the plant closing and nothing thereafter.  This results in additional compensation of $1,240.65.

[51]      At the time of his dismissal, Mr. Cabrera-Munoz’s annual base pay was $63,100.  Between 2005 and 2007, his average income, including overtime, was $81,963.  His income in 2007 was $74,554.28.

[52]      Canac calculates that Mr. Cabrera-Munoz would have worked 9.6 hours overtime up to the date of the plant closing and nothing thereafter.  This results in additional compensation of $397.15.

[53]      There is no doubt that overtime played a significant role in all of the plaintiffs’ compensation throughout the years.  In the Canac cases referred to above, the courts included compensation for overtime.  It is, in my opinion, appropriate to include compensation for overtime.  The issue, then, is quantum.

[54]      The argument that there should be no calculation for overtime because the plant closed was not accepted in Gutierrez.  At the same time, there should, in my opinion, be a recognition of the fact that overtime decreased in the years prior to the plaintiffs’ dismissal.

[55]      Given these circumstances, it is my opinion that the most appropriate income amount to apply during the reasonable notice period is the amount each employee earned in the year prior to his dismissal (Mr. Cardenas: $62,638.97; Mr. Cerda: $62,988.40; Mr. Henriquez: $62,987.31; Mr. Silva: $68,356.77; and Mr. Cabrera-Munoz:  $74,554.28.)

[56]      During their employment, the plaintiffs received a comprehensive health and benefits package, including medical benefits and disability insurance.  The plan that Canac provided had two components: a group-insured plan plus direct reimbursement to the employee for 80% to 100% of health and dental costs. 

[57]      Some benefits were continued during the statutory notice period.  No benefits were provided after that period.

[58]      The plaintiffs submit that they should be compensated for their cost of replacing the benefits during the notice period and that this amount is about $250.00 per month.

[59]      Canac submits that any damages for lost benefits should be calculated on the basis of what it actually paid for group insured benefits plus reimbursement for any health and dental costs that the plaintiffs have actually incurred. 

[60]      Canac paid the following monthly amounts to maintain the group-insured benefits: $56.58 for Mr. Cardenas; $56.58 for Mr. Henriquez; $63.32 for Mr. Cerda; $73.59 for Mr. Cabrera-Munoz; and $71.99 for Mr. Silva.  It did not provide any evidence as to the amount it had directly reimbursed each plaintiff for health and dental costs.

[61]      Each plaintiff, in his affidavit, stated that he understood that the monthly cost to Canac for the maintenance of the plan was $290.77.  No plaintiff has provided information as to what the replacement cost would be if he were to go out and purchase the insurance himself.  Only Mr. Henriquez presented evidence as to actual costs incurred after his dismissal; he provided receipts that totalled about $450.00.

[62]      The trend of the other Canac decisions is to award the plaintiff his cost to replace the benefits, as opposed to the cost to Canac to maintain the benefits.  In Gutierrez, the benefits cost Canac $55.01 per month.  The plaintiff said that it would cost him $250.00-$260.00 a month to purchase similar insurance.  Lederer J. awarded compensation in the amount of $250.00 per month.

[63]      In Moldovanyi, the plaintiff said that it would cost him $250.00 to $260.00 per month to purchase replacement benefits.  In that case, Canac’s cost had been $46.90 per month.  Brown J. concluded that Canac should pay the plaintiff the amount that it would cost him to obtain comparable coverage, that is, $250.00 per month.

[64]      In Zaman, Brown J. awarded the plaintiff the reasonable replacement cost of the insurance benefits: $293.40 per month which was the amount that the plaintiff deposed it would cost him to purchase replacement insurance benefits.

[65]      However, in Munoz, Strathy J. awarded the sum of $252.40 per month, the total monthly costs paid by Canac.

[66]      In my opinion, the preferable approach in the five cases before me would be to award the amount that it would cost each plaintiff to purchase his own comparable insurance.  Unfortunately, none of the plaintiffs presented this evidence. 

[67]      Canac points out that the plaintiffs have not provided any evidence in support of their proposition that its cost to maintain the plans was $290.77 per month.  However, Canac did not cross-examine the plaintiffs on this assertion and did not present evidence as to what its actual costs were for the health and dental plans.

[68]      Given the evidence that I do have, I conclude that $250.00 per month during the notice period is fair compensation to the plaintiffs for the loss of their benefits.  Any amount that Canac paid during the statutory notice period should be deducted from this amount.

[69]      The onus is on the employer to establish that the employee has failed to mitigate.  The employer must establish both the employee’s failure to take reasonable steps and that, had his job search been active, he would have found a comparable position (Link v. Venture Steel Inc. (2008), 2008 CanLII 63189 (ON SC), 70 C.C.E.L. (3d) 114 (Ont. Sup. Ct.)).

[70]      All five plaintiffs presented charts outlining their job search efforts.  None of the plaintiffs has been successful in finding a job.

[71]      Canac submits that two of the plaintiffs did not reasonably mitigate their damages: Mr. Cabrera-Munoz and Mr. Silva.

[72]      Mr. Cabrera-Munoz’s evidence covers job search efforts beginning in mid-May 2008, about three months after his dismissal.  Canac submits that this three-month gap is evidence of a failure on his part to reasonably mitigate his damages and should result in a one-month reduction in the notice period. 

[73]      Mr. Cabrera-Munoz was 52 years of age at the time of his dismissal and had been employed for 21 years as shift supervisor.  Although there is a three-month gap, his evidence is that he has made extensive efforts to find work.  I do not find his job search efforts to be unreasonable.  Even if they were, Canac has not established that, had his search been active during that period of time, Mr. Cabrera-Munoz would have found a comparable position. 

[74]      Mr. Silva did not present any evidence of any job search efforts prior to April 27, 2008, that is, two months after dismissal.  There is also no evidence of any job search efforts between October 24, 2008 and February 9, 2009, a gap of about 3 ½ months.  Canac submits that there should be a two-month reduction in Mr. Silva’s notice period.

[75]      Mr. Silva’s evidence covering the remaining periods of time otherwise reflects extensive efforts to find work.  Canac has not, in my opinion, established that he failed to take reasonable steps in his job search.  Even if it had, it has not established that, had Mr. Silva conducted a job search during the months in question, he would have found a comparable position.

[76]      I conclude that Canac has not established that any of the plaintiffs failed to mitigate.  There will, therefore, be no reduction of the notice period.

[77]      To the extent that the awards reflect notice periods beyond 14 months (that is, the period of time since the plaintiffs’ dismissal), there is an issue as to whether the damages should be paid in a lump sum or on a monthly basis.  This situation applies to all of the plaintiffs except Mr. Henriquez.

[78]      In Mahesuram, O’Marra J. ordered that a lump sum be paid on the basis that the plaintiff should be in the same position as if he had been provided with a fair and adequate severance payment.  To subject the plaintiff to a pay-out process would result in him incurring additional expense (at para. 32).  

[79]      A different approach was taken by Lederer J. in Gutierrez in which he ordered that the money be paid to the plaintiff as if there were working notice.  In the result, the amount attributable to the remaining notice period was to be paid out on a monthly basis.  A similar approach was taken by Brown J. in Moldovanyi and in Zaman in which he ordered that the balance of the monies owing for the notice period be paid in trust to Canac’s counsel and paid out to the plaintiff in equal monthly instalments.

[80]      Given the amount of time remaining in the notice period, I adopt the approach taken in the latter cases, that is, payment of the money into trust, with payment to the each plaintiff in equal monthly instalments.

[81]      I grant judgment to each of the plaintiffs. 

[82]      Damages are to be paid in lieu of reasonable notice.  The reasonable notice periods for the plaintiffs are:

[83]       Damages will be based on the plaintiff’s 2007 income, including overtime.  These amounts are as follows:

[84]      There will be additional compensation to each plaintiff for benefits in the amount of $250 per month over that part of the notice period during which Canac did not provide benefits.

[85]      Canac has not established that any of the plaintiffs failed to take reasonable steps to mitigate.  There will therefore be no reduction of the notice period for failure to mitigate.

[86]      Canac will pay each plaintiff that portion of the damages that is attributable to the portion of the period of notice that has passed by the date of the release of this judgment.  The plaintiffs are entitled to pre-judgment interest on this portion.

[87]      Damages that are attributable to the remaining portion of the notice period will be paid forthwith into an interest-bearing trust account held by Canac’s counsel.  I ask counsel to work out the terms, including the terms of the payments to the plaintiffs.  Failing agreement on these terms, the parties may make submissions to me.

[88]      The award of damages is subject to deductions for any amounts paid on account of statutory pay in lieu of notice and severance pay and for any employment insurance overpayments.

[89]      I would ask the parties to calculate the damages award for each plaintiff in accordance with paragraphs 82 to 88, above.  If they cannot agree on the calculations, I would ask them to make submissions to me.

[90]      I encourage the parties to come to an agreement with respect to costs.  If they are unable to do so, they may provide brief written submissions.  The plaintiffs’ submissions are to be provided within 14 days of the release of this decision.  The defendant has a further 14 days within which to respond.