[1]               The Plaintiff Royal Nasager (“the plaintiff”) brings this motion under Rule 20 of the Rules of Civil Procedure for summary judgment on a wrongful dismissal action brought against the Defendant Northern Reflections Ltd. (“Northern”). The plaintiff was employed by Northern for 4.75 years when he was dismissed without cause.  The plaintiff received five weeks’ severance pay, the minimum allowed under the Employment Standards Act, 2000. The plaintiff says he is entitled to six months’ severance pay.

[2]               The amendments to Rule 20 allow the court a broader authority than allowed under the predecessor Rule to weigh evidence, evaluate the credibility of witnesses, and/or draw any reasonable inference from the evidence. The test under Rule 20.04(2)(a) is whether there is “genuine issue requiring a trial”.

[3]               Where the plaintiff moves for summary judgment, to succeed on the motion, the defendant must by affidavit evidence adduce evidence of material facts that require a trial to assess credibility, weigh the evidence and draw factual inferences. If the plaintiff satisfies the court there are no issues of fact required to be tried, the plaintiff will succeed in obtaining summary judgment. [Soper v. Southcott, [1998] O.J. No. 2700, at para. 14, (Ont. C.A.)]. The defendant must demonstrate there is a real chance of success at a trial of the issue. Courts have held the party resisting the motion must “lead trump or risk losing” and demonstrate their case has a real chance of success at trial. [1061590 Ontario Limited v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 at 557 (Ont. C.A.)].

[4]               The court is entitled to assume the evidence contained on the record is all the evidence the parties would rely on if the matter proceeded to trial. [Ontario Jockey Club, supra, at p. 557; Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 164 D.L.R. (4^th) 257 at 265 (Ont. C.A.); Barber v. Mustard, [1993] O.J. (3d) 673, at paras. 9 and 10 (Ont. Gen. Div.); Claus v. Wolfman (1999), 1999 CanLII 14824 (ON SC), 52 O.R. (3d) 673, at 675 (Ont. S.C.J.); aff’d (2000), 2001 CanLII 24010 (ON CA), 52 O.R. (3d) 681 (Ont. C.A.)].

[5]               Much cited on wrongful dismissal actions is a case that sets down the essential factors to consider in determining the appropriate notice period, namely: the position the employee held, the employee’s length of service, the employee’s age and the availability of comparable employment having regard to the employee’s experience training and qualifications. [Bardal v. Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140, at para. 21, (Ont. H.C.J.)]. Courts have recognized in suitable circumstances a Rule 20 motion is an appropriate means to dispose of a wrongful dismissal case.

[6]               It is common ground that an employee dismissed without notice is entitled to reasonable notice and, in absence of reasonable notice, is entitled to pay in lieu. An employee is entitled to recover the value of all losses arising from the failure to have been given reasonable notice. [Adjemian v. Brook Compton North America, 2008 CanLII 27469, para. 24, (ON.S.C.)]. What constitutes a reasonable notice period is very much driven by the facts of the case. The court in Bullen held at paragraph 32:

[7]               I agree with the plaintiff that this case is an appropriate case to be resolved by summary judgment. There is no allegation of cause and no dispute as to the following material facts: the plaintiff was employed for 4.75 years at Northern; he was employed as a Manager of Online Marketing; and at the motion, the plaintiff accepted Northern’s position that the plaintiff’s job was mid to low level management; the plaintiff was 30 years of age; and he earned $56,000 at termination.

[8]               The plaintiff argues he is entitled to payment in lieu of benefits fixed at 10 percent as was allowed the plaintiff in Adjemian, supra at paragraph 27 and as Camaganacan does at paragraph 24. [Camaganacan v. St. Joesph’s Printing Ltd., 2010 ONSC 5184, at para. 24, (Ont. S.C.J.)]. Northern did not dispute that claim.

[9]               The plaintiff seeks six months’ severance pay and produced cases to support that position. Northern says the plaintiff is only entitled to the minimum five weeks’ severance it paid pursuant to the Employment Standards Act, 2000.  Northern provided no cases to support its view that a person in the plaintiff’s circumstance is only entitled to minimum statutory severance pay. Northern conceded it is unaware of any cases that support that proposition.     

[10]           The case law offers no hard and fast formula for determining an appropriate notice period. Determinations are fact-driven and other cases can only provide guidance. The plaintiff provided a chart of five cases that allowed from 6 to 8 months’ severance pay for employees from a variety of marketing and management positions in fields similar to the plaintiff’s job, with ages ranging from 32 to 44 years, whose service periods ranged from 3.25 to 5.5 years and with salaries ranging from $38,000 to $66,000.

[11]           While the cited cases are not on all fours with the case at bar, I find from a review of the cases that there is authority for a finding that six months is a reasonable notice period.

[12]           The plaintiff has the duty to mitigate his loss by demonstrating reasonable efforts to obtain alternate employment suitable to his employment experience and abilities. He is required to establish he took all reasonable steps to secure comparable alternative employment. [Bullen, supra, at para. 35; and Red Deer College v. Michaels (1975), 1975 CanLII 15 (SCC), 57 D.L.R. (3d) 386, at para. 11 (S.C.C.)]. The court is entitled to make a deduction from an award of severance pay if the employee fails to mitigate their loss.

[13]           The burden of demonstrating the employee has not met that duty rests with the former employer. This court has addressed the nature of that duty:

[14]           The Supreme Court of Canada also spoke to the weightiness of the defendant’s onus:

[15]           Northern takes issue with the plaintiff’s mitigation efforts, asserting the plaintiff has failed to establish reasonable attempts to mitigate his loss. Northern argues the plaintiff was required to provide more information related to his searches such as resumes and cover letters. This issue, in Northern’s view, requires determination at trial.

[16]           I do not agree with Northern’s position. Adjemian, at paragraph 21, makes the point which I accept, that mitigation need not be perfect.  

[17]           The plaintiff brought evidence in the form of an affidavit and a mitigation chart that satisfy me he made reasonable attempts to mitigate. He applied for over 60 positions in the nine months since termination in various industries for jobs with features similar to those in his job description with Northern ─ various marketing and management positions, for instance: online marketing manager; web manager; marketing coordinator; manager, technology and web analytics; online marketing manager, e-business; wireless marketing manager; and manager, social media marketing, to name a few.

[18]           The plaintiff indicated he set up a profile on a web job search site and registered with a head hunter. He has networked with friends, former customers and business contacts. The plaintiff attests to having had four interviews with one second interview, but he has not succeeded in getting a job offer.

[19]           I find the plaintiff’s efforts were reasonable. The plaintiff submits that once I am satisfied he met his onus I need not consider whether Northern has met its obligation to show that by reasonable effort the plaintiff could have secured other employment of a similar type suited to his abilities.  

[20]           I agree with the plaintiff. However, were I required to look at whether Northern succeeded in meeting its burden, I would find it did not. Northern produced several newspaper and employment website job ads for the period of the plaintiff’s search and it submits the plaintiff failed to apply for those positions so his search was not reasonable. The job ads that were legible were only peripherally, if at all, suited to the plaintiff’s abilities. The jobs cited by the plaintiff appeared more similar to the character of his job with Northern.

[21]           The notice period will not be reduced due to failure to mitigate.

[22]           In the result, I find Northern failed to satisfy its onus on a Rule 20 motion. It was unable adduce evidence of material facts requiring determination at trial and I accordingly dismiss the motion.          

[23]           I award damages of $28,215.40 calculated as follows:

[24]           The damage award is subject to pre- and post-judgment interest pursuant to sections 128 and 129 respectively of the Courts of Justice Act, R.S.O.  1990 c. C. 43 as amended.

[25]           In accordance with the principle that the costs should follow the event, I award costs to the plaintiff on a partial indemnity scale. The plaintiff seeks costs on that scale of $14,461.56, inclusive of disbursements and G.S.T.

[26]           The matter was not overly complex or the proceeding exceptionally lengthy. In view of the nature of the matter, I find the length of the plaintiff’s counsel’s experience and the hours and fees billed were basically proportionate to the complexity of the matter. The bill is therefore within a reasonable range.

[27]      I fix costs of $10,000 payable within 30 days of this Order. The quantum of costs allowed is fair, within the reasonable expectations of the parties, and in accord with the principles set out by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (Ont. C.A.).