



COURT OF APPEAL FOR ONTARIO

CITATION: Dussault v. Imperial Oil Limited, 2019 ONCA 448

DATE: 20190529

DOCKET: C65184

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Donald Dussault and Maryann Pugliese

Plaintiffs (Respondents/
Appellants by Cross-Appeal)

and

Imperial
    Oil Limited


Defendant (Appellant/
Respondent by Cross-Appeal)

Richard J.
    Nixon and Brendan Clancy
, for the appellant

David E. Greenwood and Simon Reis, for the respondents

Heard: April 25, 2019

On appeal from the orders of Justice Lise Favreau of the Superior
    Court of Justice, dated February 20, 2018, with reasons reported at 2018 ONSC 1168,
    and dated July 13, 2018, with reasons reported at 2018 ONSC 4345.

REASONS FOR DECISION

[1]

The appellant employer appeals and the respondent employees cross-appeal
    from the motion judges orders awarding wrongful dismissal damages to the
    respondents. The appellant dismissed the respondents from their employment, without
    cause, following the sale of part of its retail business to Macs Convenience
    Stores Inc.

[2]

At the conclusion of the hearing, we dismissed the appeal with reasons
    to follow and reserved our decision on the cross-appeal.  As indicated below,
    the cross-appeal is allowed.  These are our reasons for our disposition of both.

Appeal

[3]

The appellants principal submission is that the motion judge erred in
    failing to find that the respondents had not mitigated their damages by
    accepting comparable employment with Macs.  In its factum, the appellant also argues
    that the motion judge erred further in awarding as damages the value of substantially
    the same benefits that the respondents continued to receive under their
    pensions.

[4]

We do not accept these submissions.

[5]

We start with the following well-established principles:  to mitigate
    any damages arising from dismissal, an employee must make reasonable efforts to
    seek comparable

employment; and it remains the employers burden to
    prove the employees failure to do so:  see:
Red Deer College v. Michaels
,
    [1976] 2 SCR 324.  Comparable employment does not mean any employment but
    comprehends employment comparable to the dismissed employees employment with
    his or her former employer in status, hours and remuneration:
Carter v.
    1657593 Ontario Inc.
,
2015 ONCA 823, at para.
    6
.

[6]

We see no error in the motion judges detailed conclusions that the
    employment offered by Macs was not comparable and that the respondents acted
    reasonably in refusing it.  On the face of Macs offers, the proposed
    employment would have resulted in an immediate, substantial decrease in
    benefits and, after 18 months, a material drop in base salary.

[7]

The appellants argument that its proposed lump sum payments to the
    respondents would have made up any difference in benefits rings hollow given
    its refusal to disclose those amounts without the respondents first having
    accepted Macs offers and signed a release in favour of the appellant.  Moreover,
    Macs offers required the respondents to waive their years of service and their
    entitlements to common law notice and to termination and severance pay under
    the
Employment Standards Act
, 2000, S.O. 2000, C. 41, based on those
    years of service.

[8]

The determination of whether the respondents had mitigated their damages
    by accepting comparable employment is a fact-driven inquiry.  The motion
    judges findings stand firmly rooted in the evidence and are entitled to
    deference on appeal.  We agree with her conclusion that the appellant did not
    discharge its burden to prove the respondents had failed to mitigate their
    damages.

[9]

Turning next to the issue of duplication of benefits compensation, we
    are not persuaded that the motion judge erred in determining the respondents
    were entitled to damages representing the value of their employment benefits.

[10]

As
    the motion judge noted, wrongfully dismissed employees are entitled to damages
    for the employment benefits they would have received as part of their
    employment compensation:
Paquette v. TeraGo Networks Inc.
, 2016 ONCA
    618, at para. 16.

[11]

The
    motion judge correctly determined that the respondents benefits under their retirement
    pensions formed part of their retirement savings earned through their years of
    service and were not an indemnity for lost employment compensation:
Waterman
    v. IBM Canada Ltd.
, 2013 SCC 70, at para. 77.  As a result, we agree with
    the motion judges conclusion that any benefits to which the respondents were
    entitled as part of their retirement pension plan should not be viewed as employment
    compensation for lost employment benefits and therefore should not be deducted
    from the damages awarded for lost employment compensation.

Cross-appeal

[12]

The
    respondents submit that the motion judge erred in awarding damages for the
    appellants annual contributions to their Savings Plan based on 3% rather than
    6% of their base salaries.  The appellant maintains that there was no error in
    the motion judges fact-based finding that the respondents were only entitled
    to receive compensation for the 3% contribution that the appellant was
    obligated to make at the time of the termination of their employment because of
    the respondents historical designations under the Plan.

[13]

In
    order to put these submissions into proper context, it is useful to set out the
    relevant provisions of the Savings Plan in issue and the respondents rights
    and designations under that Plan.

[14]

During
    their employment, the respondents employment benefits compensation included
    the appellants annual contributions to their Savings Plan.  Depending on the
    respondents elections, the appellant would contribute between 0 to 6% of their
    annual base salaries to their Savings Plan to match the aggregate amount
    contributed by the employee to the Plan.  As members of the appellants
    Heritage Plan, the respondents could make a yearly election to participate in
    the Retirement Income Option of their pension plan which would affect the
    appellants percentage contributions to their Savings Plan and supplementary
    pensions.

[15]

In
    the course of their employment, the respondents elected to participate in the
    Retirement Income Option of their pension plan, which meant that the appellant
    contributed 3% of their base salaries to their Savings Plan and another 3% to
    their supplementary pensions. This election was still in place at the time of
    the termination of their employment.

[16]

Following
    the termination of their employment in October 2016, but during the
    respondents 26-month notice period, the appellant instigated amendments to the
    Savings Plan effective January 1, 2017. For the purpose of the cross-appeal,
    the relevant amendments were that the appellants percentage contribution to the
    Savings Plan would decrease to 1% for those employees who elected to
    participate in the Retirement Income Option of the appellants pension plan.  Employees
    were required to make an election as to their plan option in the fall of 2016.

[17]

The
    motion judge, at para. 50 of her damages decision, determined that given their dismissal
    from employment, the respondents did not have an opportunity to re-elect to
    leave the Retirement Income Option. The respondents point to the fact that
    their pensions were fully funded at this time and that any reasonable employee
    would have elected to leave the Retirement Income Option to maximize their
    Savings Plan. However, she determined that the appellants contribution would
    not have exceeded 3%.

[18]

In
    our view, the motion judge erred in her interpretation of the Savings Plan. 
    The 2017 amendments clearly provide that if an employee opted out of the
    Retirement Income Option, the appellants contribution would be 6% to the
    Savings Plan, assuming the aggregate amount the employee had contributed was
    also 6% of their earnings, which was the case for both respondents. Given the
    motion judges finding that the respondents were entitled to the compensation
    that they would have received had they remained employed, she should have
    awarded damages for lost Savings Plan benefits in the amount of 6% of their
    base salaries for the period of reasonable notice, less the amounts already
    paid by the appellant for the 8 weeks of statutory notice due to the
    respondents.

Disposition

[19]

We
    dismiss the appeal and allow the cross-appeal.  We order that the appellant pay
    the respondents the respective amounts of 6% of their base salaries for the
    period of reasonable notice, less the amounts already paid by the appellant for
    the 8 weeks of statutory notice.

[20]

As
    agreed, the respondents are entitled to their partial indemnity costs of the
    appeal and cross-appeal in the amount of $22,000, inclusive of disbursements
    and applicable taxes.

David
    Brown J.A.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.


