[1]               The plaintiff, Merida Lake, was employed by the defendant, La Presse (2018) Inc., for about five-and-a-half years when her employment was terminated on March 25, 2019. The parties agree that she was terminated without cause, and is entitled to reasonable notice at common law. This summary judgment motion raises the following issues:

[2]               I note that this motion proceeded as a bilingual motion. On agreement of the parties, it proceeded without an interpreter in order to bring the motion on for hearing more quickly. These reasons are written in English and shall be translated into French.

[3]               I turn directly to my analysis, and review the facts of the case in the context of the issues to be determined.

[4]               The parties submit that this case is appropriate for summary judgment. I agree.

[5]               In Hryniak v. Mauldin, 2014 SCC 7, at para. 47, the Supreme Court of Canada held that summary judgment motions must be granted whenever there is no genuine issue requiring a trial. At para. 49, the Court he explained that there will be no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits on a summary judgment motion. “This will be the case when the process (1) allows a judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[6]               I am satisfied that the record filed allows me to make a fair and just determination on the merits in this case. There are no credibility issues to be determined. Cause is not alleged. There are no claims for any extraordinary damages that would require a trial. The facts are straightforward and can easily be determined on the evidence that has been filed. The summary judgment process will allow me to apply the law to the facts in a manner that is more proportionate, expeditious, and less expensive.

[7]               In determining the reasonable notice period, both parties rely on Bardal v. Globe & Mail Ltd, 1960 CanLII 294, 24 D.L.R. (2d) 140 (Ont. H.C.). There, the court held, at p. 145:

[8]               I turn to consider the evidence before me that is relevant to these factors.

[9]               The defendant is a daily online French language newspaper, based in Montreal, Quebec.

[10]           The plaintiff holds a Bachelor of Science degree in neuroscience from the University of Toronto. Prior to working for the defendant, the plaintiff spent about 20 years working in sales and sales operations for various media companies, including as director of sales for Torstar Digital and as the national sales director and associate publisher for Wedding Bells, a Canadian bridal magazine. She also had experience cofounding a startup. Immediately before joining the defendant’s employ, she was employed with TC Media as a brand director for Fresh Juice, which she describes as a “multiplatform media brand with integrated marketing across print and digital magazines, a website, weekly e-newsletter and comprehensive social media program.”

[11]           On August 2, 2013 the plaintiff signed an employment contract with the defendant to become the general manager of Gesca Media Sales Toronto, a division of the defendant. This position came with a more senior job title, a higher base salary, and a higher bonus than the plaintiff had had at TC Media. The plaintiff began working for the defendants in September 2013 and held the position of general manager until her termination, some five-and-a-half years later, at the age of 52. At the time of her termination, she was earning a base salary of $185,000 per year, and enjoyed other benefits including a car allowance and a bonus, which I discuss in greater detail below.

[12]           In her role, she reported to the Vice-President of Sales and Operations, who was based in Montreal. She was the most senior employee in the Toronto division. At one time, the plaintiff was responsible for thirteen direct reports, but by the time her employment was terminated she was responsible for eight direct reports.

[13]            The purpose of the Toronto division was to generate advertising revenue for the defendant in English Canada. The plaintiff describes her duties as including client development, training and management of sales teams, and the development and implementation of the organization’s sales strategies.

[14]           The defendant agrees that the plaintiff’s job was to manage the sales team to generate advertising revenue in Toronto and in English Canada. It states that she negotiated contracts and agency agreements. However, the defendant’s evidence is that the plaintiff overstates her role. Her counterpart in Québec, who reported to the same person as the plaintiff, had the lesser title of senior director (directrice principale), not general director (directrice générale). The plaintiff’s more senior title reflected her status as the most senior employee in Toronto. However, the plaintiff did not attend weekly executive meetings, nor did she participate in setting strategic direction within the organization.

[15]           Unfortunately, there were challenges in the Toronto office, in part due to the shift of the defendant’s business to solely online platforms and away from print. By March 2019, the defendant had decided to close the Toronto office, and outsource the work performed by the Toronto office to a third party.

[16]           On March 25, 2019, the defendant advised the plaintiff that her employment would end on May 30, 2019. The parties entered into negotiations around the terms of the plaintiff’s termination which did not result in a resolution, but as a result of which the plaintiff actually ceased working on April 30, 2019.

[17]           The defendant argues that the plaintiff’s experience, including her experience in sales and in management, is transferable, such that there should be available positions for her in the job market. It argues that the transferability of her skills militates in favour of a shorter reasonable notice period.

[18]           The plaintiff argues that two years have passed, and she remains without employment. She states she has diligently looked for work, used the services of a career consultant, spent time networking and attending conferences, all to no avail.

[19]           The plaintiff also argues that ageism is rampant in her industry, and makes it more difficult for her to obtain work. In support of this argument she has attached some newspaper articles to her affidavit that are hearsay, and on which I cannot rely for proof of the truth of their contents. The plaintiff’s own affidavit evidence asserting that ageism is a problem is a bald assertion. Apart from raising issues around the admissibility of the newspaper articles as proof of ageism in the industry, the defendant also notes that it hired the plaintiff when she was in her late 40’s, an age that the newspaper articles suggest is already past the best-before date in the industry. I do not rely on the evidence of ageism in the industry in these reasons; it is not properly proven in the evidence.

[20]           The defendant argues that the plaintiff’s efforts to look for work have been unreasonable, in part because she has focused on vice president positions - a title she has never held - rather than focusing on roles for which she has experience. The defendant also argues that the plaintiff has focused efforts on positions in industries where she has no experience, as opposed to concentrating on media. The defendant notes that in the twelve months after her termination, the plaintiff applied for eleven positions, nine of which were vice president roles. I address these arguments in greater detail, below, in my analysis of mitigation.

[21]           I note that later in 2019, the defendant determined that the third party provider it had engaged was not working out. It terminated its contract with third party within six months of the plaintiff’s dismissal. The defendant rehired a general manager for its Toronto office and hired additional support staff. The plaintiff complains that she was never given the opportunity even to apply for the position of general manager. The defendant explains that another third party was involved in the process of setting up the Toronto operations again. Because that process was quite far along, and promises had been made to the candidate who was eventually hired, the defendant had no practical opportunity to consider the plaintiff for the position.

[22]           Based on this evidence, I conclude that the plaintiff held a position of some responsibility with the defendant, but she was not a key member of the management team. She was employed with the defendant for about five-and-a-half years, which is neither a terribly short nor terribly long period of time. She was 52 years old at the time of her dismissal, an age where I accept it may be harder to find work. However, she also had significant experience in management and sales to offer a prospective employer, especially in the media industry.

[23]           I will address the questions around the plaintiff’s mitigation efforts in greater detail when I analyze that issue, however, at this juncture I note I am not satisfied on the evidence that there were no or few positions for which the plaintiff was qualified. I have concerns that the plaintiff aimed her job search too high, and her evidence of the paucity of opportunities in the job market reflects the opportunities for jobs that would have been, in effect, a promotion for her. Accordingly, I infer that there were more jobs available to her than those for which she applied, because I would expect that as one searches for more senior positions, fewer are available. Put another way, had she broadened her expectations to include positions at the levels she had held previously, she would have been able to apply for additional jobs, including jobs she was more likely to be a serious candidate for.

[24]           Each party has provided me with cases they argue are helpful in establishing the period of reasonable notice in circumstances like the ones present here. As with all cases dealing with reasonable notice, each turns on its own facts and none is on all fours with the case before me.

[25]           I take note of Ayers v. Carewell Holdings Inc., [2002] O.J. 2109 (S.C.J.), where a plaintiff who had held the position of vice president for slightly less than five years was dismissed at the age of 52, and was found to be entitled to twelve months’ reasonable notice. The plaintiff in Ayers held a more senior title than does the plaintiff here. His base salary was significantly lower, but the case is twenty years old.

[26]           In Schultz v. Canada Lands Co. CLC Ltd., 2019 ONSC 2124, a 58-year-old who occupied a position that was “one level below senior management” was dismissed after four years of employment. He had been responsible for a major multi-million dollar real estate project, which included creating and implementing a public consultation process, drafting the master plan, securing planning approvals, planning and directing land servicing and preparing and implementing marketing and disposition strategies. He was found to be entitled to twelve months’ notice. In my view, the plaintiff here occupied a position of lesser responsibility than the plaintiff in Schultz.

[27]           In Lopez v. EMD Inc. (Canada), 2017 ONSC 7716, the plaintiff had been employed for less than five years in a management position with two direct reports. His age is unclear, but the cases referred to in the decision as comparable deal with people in their 50s. The court concluded he was entitled to five months’ notice.

[28]           In Goodman v. Medi-Edit Communications Inc. (2002), 115 A.C.W.S. (3d) 997, the plaintiff, who was second in command, and an “extremely important part of the business” was dismissed after four years and four months, when she was just shy of 50 years old. The court concluded that five months’ notice was appropriate. I note this case is also about 20 years old. I also note that being second in command was perhaps less impressive than it sounds, as the plaintiff was also one of two employees of the business (the other being the first in command), with the exception of a receptionist who was hired, and some editors who were hired on a part-time contract basis.

[29]           In Leeming v. IBM Canada Ltd., 2015 ONSC 1447, the plaintiff was 60 years old at the time of her dismissal from a senior managing consultant position she had held for eight years. The court described her position as a “middle managerial administrative position,” but not one that would give her any special training, expertise or qualification that would leave her with any sort of advantage in obtaining similar employment. She was found to be entitled to ten months’ notice. The court noted that senior management level employees tend to be entitled to a longer period of notice than lower ranked or unspecialized employees: para. 39.

[30]           Having regard to these decisions, and the findings I made above, I am of the view that the reasonable notice period in this case is eight months.

[31]           At the time of her dismissal, the plaintiff’s remuneration consisted of:

[32]           In addition to these aspects of her compensation, the plaintiff’s contract included a provision for an annual bonus. The parties disagree on whether the plaintiff is entitled to damages in respect of her bonus for (i) the period from January 1, 2019 to March 26, 2019, the date of dismissal; and (ii) the reasonable notice period.

[33]           Under the heading “annual bonus plan,” the bonus provision reads:

[34]           Until 2019, in every year in which the plaintiff worked for the defendant, she received a bonus, as follows:

[35]           In Paquette v. Tera-Go Networks Inc., 2016 ONCA 618, the Court of Appeal considered when damages for wrongful dismissal may include an amount for a bonus the employee would have received had he continued in his employment during the notice period. The court found that the basic principle is that the terminated employee is entitled to be compensated for all losses arising from the employer’s breach of contract in failing to give proper notice: at para. 16. In other words, damages typically include all of the compensation and benefits the employee would have earned during the notice period.

[36]           Damages may include an amount for a bonus the employee would have received, or the damages for the lost opportunity to earn a bonus, where the bonus is an “integral part of the employee’s compensation package”: at para. 17.

[37]           Where a bonus plan exists, its terms will often be important in determining the bonus component of a wrongful dismissal damages award. “To the extent that there are limitations, the question may arise as to whether they were brought to the attention of the affected employees, and formed part of their contract of employment”: at para. 18.

[38]           The Court of Appeal endorsed a two-stage analysis: first, the court must consider whether the bonus was an integral part of the employee’s compensation package; second, if so, the court must ask if there is any language that would specifically remove the employee’s bonus entitlement.

[39]           I have no difficulty concluding that the bonus was an integral part of the plaintiff’s compensation package. The bonus was substantial, and formed a significant part of her overall compensation. It had been growing over time. Up until 2019, it had always been paid. The bonus was tied to objective criteria – namely, meeting or exceeding corporate objectives. It was not discretionary; it was conditional, that is, it was triggered on meeting the corporate objectives. Moreover, the plaintiff had every reason to expect that corporate objectives would be set. They had always been set in the past, and setting corporate objectives is behaviour that one would expect from a responsible organization.

[40]           The question remains whether there is language in the contract that would remove the plaintiff’s bonus entitlement.

[41]           In this case, the defendant argues that the plaintiff has no entitlement to damages related to the bonus because the bonus was discretionary, and based on attainment of corporate objectives. It argues that, in view of the struggles the Toronto office was facing, and the plan to close the office, no corporate objectives were ever articulated for the Toronto office in 2019, and accordingly, the conditions under which a bonus would have been payable never arose. The “Total Rewards Statement” – the document by which the defendant set out its corporate objectives annually – was never provided to the plaintiff for fiscal year 2019, because, the defendant states, it had no intention of paying a bonus for 2019. For this reason, the defendant denies it is liable to pay a bonus either for the period of time that the plaintiff was employed in 2019, or for the reasonable notice period.

[42]           The defendant also relies on the text of the “Total Reward Statement,” which provides, under the heading “Short term incentive rules of application” that:

[43]           The defendant argues that the bonus was thus not payable unless the plaintiff worked at least six months during the defendant’s fiscal year. Because the Toronto office was closed, it was impossible for the plaintiff to comply with this condition.

[44]           I have difficulty with these arguments.

[45]           First, in Paquette, the Court of Appeal noted that, when considering whether the contract removes the entitlement to a bonus, “the question is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the [plaintiff’s] common law rights”: at para. 46. Reference to “corporate objectives” does not unambiguously remove the plaintiff’s entitlement to a bonus.

[46]           Second, the defendant’s argument requires me to accept that the defendant can unilaterally choose not to articulate corporate objectives in order to deprive the plaintiff of compensation she bargained for. The clause implies that corporate objectives will be articulated.

[47]           Third, the argument that the “Total Reward Statement,” requires the plaintiff to have worked for six months in fiscal year 2019 in order for her to be entitled to damages for her lost bonus is akin to the clause at issue in Taggart v. Canada Life Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.). There, Sharpe J.A. considered a clause in a pension plan that required “active service” as a prerequisite for accrual of pension benefits. Justice Sharpe, at paras. 11 and 16, found it “unpersuasive” that such a clause would preclude compensation for lost pension benefits; the argument ignored the nature of the claim, which was not for pension benefits but for damages for the benefits the employee would have earned had the employer not breached the contract of employment. Justice Sharpe’s approach in Taggart was adopted by the Court of Appeal in Paquette: at para. 29.

[48]           Similarly, the statement in the “Total Rewards Statement” (which itself does not contemplate termination, but rather “retirement, death, long term disability or involuntary leave”) does not alter the nature of the plaintiff’s claim which is not for her bonus, but for damages for the loss of her bonus.

[49]           Thus, in my view, neither the employment contract nor the Total Reward Statement unambiguously removes or alters the plaintiff’s common law right to compensation for her lost bonus. These conclusions are supported by the following observations I make from the evidentiary record.

[50]           The Toronto office did not remain closed for the entire calendar year. It closed, and subsequently reopened, all during 2019.

[51]           The evidence indicates that the employees in the defendant’s Montreal office received bonuses in 2019 in the usual course.

[52]           The defendant argues that the plaintiff knew there were problems in the Toronto office, and relies on the fact that the department had shrunk, from a time when the plaintiff had 13 direct reports to her having eight direct reports at the time of her dismissal. I cannot infer from the department shrinking that the plaintiff knew it was going to close. The plaintiff’s evidence is that she was shocked by the closure. The notion that she knew differently is at odds with the defendant’s efforts to cast the plaintiff as a middle manager, not someone involved in directing strategy for the organization.

[53]           In cross-examination, one of the defendant’s witnesses acknowledged that there is no language in the plaintiff’s employment contract in which she waived her common law right to a bonus.

[54]           I thus conclude that the plaintiff is entitled to damages in respect of the lost bonus, both for the period January 1, 2019 to March 26, 2019, and for the reasonable notice period.

[55]           The next issue relating to the bonus is how it ought to be calculated. The plaintiff proposes averaging her bonus over the three prior years, while the defendant proposes averaging the bonus over all the years of the plaintiff’s employment. The difference is not negligible, given the increase in the plaintiff’s bonus over time.

[56]           The defendant relies on Ludchen v. Stelcrete Industries Ltd., 2013 ONSC 7495, at para. 90, where the court, without describing its reasoning process, calculated the plaintiff’s damages for lost bonus by averaging his bonus over the previous five years. I note that the bonus in that case ranged between $2,000 to $5,000 per year, figures much smaller than those at issue here. I do not find that decision helpful.

[57]           In my view, given the steady and significant increase in the plaintiff’s bonus over time, averaging her bonus over a six year period to calculate her damages for lost bonus would artificially depress the value of the bonus to which she would have been entitled as part of her compensation. I find it is more appropriate to calculate her damages for lost bonus by taking an average of the past three years. Doing so is a fair and realistic approach to balancing both, the size of the bonuses to which the plaintiff had become accustomed, and second, the difficulties the defendant was facing in the Toronto division. Moreover, I note that those difficulties did not emerge from the ether; the defendant argues it set no corporate objectives for Toronto, and that the closure of the Toronto office was foreseeable, and known to the plaintiff. While I have not accepted this argument, I do accept that there were problems in the Toronto division. And yet, for 2018, the plaintiff received a significant bonus.

[58]           As a result, I calculate the annual value of the plaintiff’s bonus to be $39,065.

[59]           The last issue I must consider is whether the plaintiff took reasonable steps to mitigate her damages.

[60]           In Ostrow v. Abacus Management, 2014 BCSC 938, at para. 99, the court held that, as with any claim for damages for breach of contract, the plaintiff in a wrongful dismissal suit has a duty to mitigate their damages. The onus is on the defendant to demonstrate that the plaintiff did not mitigate their damages. The onus is not a light one.

[61]           The employer must prove that the employee failed to mitigate, and that had the employee taken reasonable steps to mitigate, he would have likely obtained equivalent or alternate employment. Where the employer meets the burden, the notice period may be reduced or eliminated altogether: Ostrow, at para. 100, citing Nardulli v. C-W Agencies Inc., 2012 BCSC 1686.

[62]           In certain circumstances, the court may reasonably infer that the employee would have obtained employment sooner if he had made reasonable efforts, even without direct evidence that jobs were available: Ostrow, at para. 100.

[63]           While the duty to mitigate theoretically begins at the date of termination, courts have acknowledged that employees generally require a period of readjustment and regrouping before pursuing re-employment strategies. An assessment of all the circumstances is required: Ostrow, at para. 10.

[64]           In Bustos v. Celestica International Inc. (2005), 2005 CanLII 24598 (ON SC), 45 C.C.E.L. (3d) 1 (S.C.J.), at para. 38, the court found that the plaintiff was entitled to an appropriate amount of time to adjust to his situation and plan for the future before fulfilling his duty to mitigate. However, the plaintiff there waited twelve weeks before commencing his job search, an amount the court found unreasonable. The court reduced his notice period by eight weeks as a result.

[65]           In Gingerich v. Kobe Sportswear Inc. (2008) 2008 CanLII 2749 (ON SC), 63 C.C.E.L. (3d) 311, (S.C.J.) at para. 17, the court held that the plaintiff’s obligation to mitigate extends to seeking out reasonably comparable work for which he is qualified. Moreover, after a reasonable period of attempting to find similar employment, a dismissed employee “must at some point lower her sights and aspirations and either take a lesser paying job or attempt to use her managerial skills in a perhaps unrelated industry”: Neilipovitz v. ICI Paints (Canada) Inc., [2002] O.T.C. 371 (S.C.J.), at para. 25.

[66]           The defendant alleges that the plaintiff here did not do enough to mitigate her damages, and seeks to reduce the reasonable notice period by eight weeks as a result. The plaintiff denies her mitigation efforts were not reasonable.

[67]           With respect to the plaintiff’s efforts to mitigate her damages, I make the following findings, drawn from the evidence:

[68]           In my view, the steps taken by the plaintiff to mitigate her damages are not reasonable, in the following ways:

[69]           In these circumstances, I infer that, had the plaintiff expanded the parameters of her job search, searched earlier, and applied for more positions, her chances of obtaining a position would have improved significantly. Although there is no direct evidence in front of me of other positions that the plaintiff could have applied for, I find it is reasonable to assume that they existed. If vice president roles were available, more junior roles were also available. The plaintiff chose unreasonably to limit her job search, which had a corresponding impact on her ability to find work.

[70]           In my view, a two-month reduction in the period of reasonable notice is appropriate to account for the plaintiff’s failure to take reasonable steps to mitigate her damages.

[71]           The plaintiff is thus entitled to the following:

[72]           The amount to which the plaintiff is entitled must be reduced by the salary, car allowance, benefits and pension paid by the defendant to the plaintiff over the notice period. These amounts total $40,026.22 ($33,958.90 in salary, $1,508.56 in car allowance and $4,558.76 in benefits).

[73]           I encourage the parties to agree on costs. If they cannot, I will receive costs submissions as follows:

[74]           As noted earlier, I order that these reasons shall be translated into French and released to the parties in French as soon as available.