[1]               The plaintiff seeks summary judgment under Rule 20.01 in a wrongful dismissal action.

[2]               The plaintiff asserts there are no issues which require a trial.

[3]               The defendant takes the position that there remain issues which require a trial and summary judgment is not appropriate.

[4]               For reasons which follow, I conclude there are no issues which require a trial and summary judgment is granted in the amount of $57,253.59.

[5]               At the hearing of the motion, I had before me the affidavit of the plaintiff, and the transcript of his cross examination on the affidavit.  I also had before me the affidavit of Sonia Ritacca, the defendant’s Human Resources Supervisor.  The defendant had issued a summons to the plaintiff and he was present and available for examination at the motion.  Neither party asked for an opportunity to question the plaintiff.  Having considered the adequacy of the other material filed, it was unnecessary for me to do so.

[6]               The following facts are not contested.

[7]               The defendant is a printing and communication company.

[8]               The plaintiff was employed by the defendant for 18.5 years.  For most of this time and at the point of dismissal, he held the position of First Pressman.  This position included some supervisory responsibilities and was in the nature of a lead hand.  The position did not include true management responsibilities.

[9]               The plaintiff was terminated at the age of 50, on September 7, 2009 without cause.  He was given 27 weeks’ pay in lieu of notice.

[10]           At the time of termination, the plaintiff was earning $33.54 an hour.  His regular annual earnings not including overtime were $62,786.88.

[11]           The plaintiff worked available overtime.  The amount of overtime in his classification declined from 2005.  In 2006 he worked 292.75 hours of annual overtime which fell to 53.75 in 2008 and none in 2009.

[12]           The plaintiff enjoyed a benefits package that included extended health, dental, disability and life insurance.  Premiums were shared between the plaintiff and defendant by way of payroll deduction.

[13]           Until February 2009, the defendant provided matching RRSP contributions.

[14]           From 2000 to the present, the plaintiff  worked part time selling insurance.  He was paid commissions by various insurance carriers.  From 2004 to 2008 his average annual income from this work was $20,512.01.  In the year 2009, these earnings increased to approximately $36,000.00.

[15]           Since termination, the plaintiff has earned business income making boat covers, tops and upholstery.  From the time of his termination until June 2010, he earned approximately $1000.00 from this work.

[16]           To mitigate, the plaintiff has applied for over 105 comparable positions and has had 35 job interviews.  He has searched newspapers and job recruitment websites.  The plaintiff has pursued training, job search tips and recruitment advice from on line sources.

[17]           The issues to determine on the basis of these facts are:

[18]           As to the length of reasonable notice, the plaintiff suggests 16 months.  The defendant suggests between 12 and 14 months.  Both rely on similar authorities.  The only case dealing with a similar position in the printing industry is Paimondo v. Shorewood Packaging Corp. 2009 CanLII 16744 (ON SC), [2009] O.J. No. 1519 (S.C.J.).

[19]           An employee dismissed without cause is entitled to reasonable notice of termination or pay in lieu of notice.  It is well settled that in determining the period of notice, the court should have regard to the nature of the position, the length of service, the availability of comparable work and the age of the employee (see Adjemian v. Brook Crompton North America [2008] O.J. No. 2238 at paragraphs 20 – 26).

[20]           In considering these factors, and in view of the nature of the position (which is not management), I have no difficulty in finding that 16 months is appropriate in the circumstances.  This term is consistent with the majority of the authorities relied upon by both parties and represents an accurate assessment of the amount of time that it will likely take the plaintiff to find comparable employment in this or any other industry.

[21]           The next issue is the calculation of damages.  There are three points to consider; the significance of overtime, group benefit plans, and RRSP contributions.

[22]           On the issue of overtime, the plaintiff worked 53.75 hours in 2008 and no overtime in the first eight months of 2009 prior to his termination.  It is quite possible given the downturn in business that the plaintiff would have ended up working no overtime for the 2009 calendar year, had he continued past his termination date.  In the circumstances, I find that a figure of 50 hours is reasonable, having regard to the year over year decline in overtime opportunities from 2006, the overtime worked in 2009 and the forecast decline in the defendant’s business and industry.

[23]           On the issue of benefits including RRSP contributions, it is not unusual in a non-unionized workplace to cost the entirety of a benefit plan to be approximately 10 per cent of base salary.  As the Court did in Adjemian referred to above, I find that this is a just and fair assessment of the value of the benefit package, including the RRSP matching contributions that were discontinued early in 2009.

[24]           With respect to the adequacy of mitigation, the record is fairly clear that the plaintiff has made reasonable efforts to mitigate, including his work selling boat covers and upholstery.  It is also clear that he continued his work selling insurance and even increased the level of this business.

[25]           I do accept the defendant’s suggestion that the plaintiff likely spent more time selling insurance in 2009 which is reflected in the increased earnings.

[26]           I am prepared for these reasons to reduce the damages by $5,000.00 to reflect the mitigation earnings both from the boat cover business and the selling of insurance.

[27]           I calculate damages to be $57,253.59 broken down as follows:

[28]           As in Adjemian the plaintiff has judgment during the period in which there is an obligation to mitigate.  Following that decision and Bullen v. Proctor & Redfern Ltd.(1996), 1996 CanLII 8135 (ON SC), 20 C.C.E.L. (2d) 36 (Ont. Gen. Div.) and Correa v. Dow Jones Markets Canada (1997), 1997 CanLII 12268 (ON SC), 35 O.R. (3d) 126 (Gen. Div.), a trust will be imposed requiring him to account for any mitigatory earnings.

[29]           The plaintiff is entitled to pre-judgment interest.  If the parties cannot agree to costs, they may make submissions to me in writing within 10 days of the release of this endorsement.

[30]           Judgment accordingly.