



COURT OF APPEAL FOR ONTARIO

CITATION: Beatty v.
    Best Theratronics Ltd., 2015 ONCA 247

DATE: 20150414

DOCKET: C59117

Gillese, van Rensburg and Pardu JJ.A.

BETWEEN

Clifford Douglas Beatty

Plaintiff (Respondent)

and

Best Theratronics Ltd.

Defendant (Appellant)

Frank Cesario and Siobhan M. OBrien, for the appellant

Graeme B. Fraser, for the respondent

Heard: April 2, 2015

On appeal from the judgment of Justice Charles T.
    Hackland of the Superior Court of Justice, dated June 24, 2014.

ENDORSEMENT

[1]

The respondent moved for summary judgment in a wrongful dismissal
    action. The motion judge granted partial summary judgment, and directed that
    the claims for aggravated, punitive and special damages proceed to summary
    trial.

[2]

The appellant contends that the motion judge erred in his determination
    of the reasonable notice period of 16 months and in concluding that the
    respondent made reasonable efforts in mitigation. The appellant asks that the
    judgment be set aside and the respondents claim dismissed, or alternatively
    that a trial be ordered in respect of the period of reasonable notice and
    mitigation.

[3]

The respondent is a high school graduate who, after a long career in the
    military, joined the appellants predecessor in 1994. Throughout his employment
    he was the radiation safety officer for the appellants facility that
    manufactures nuclear medical equipment. The respondent was 58 years old when
    his employment was terminated with 12 weeks salary and benefit continuation.
    He had 16 years of continuous employment with the appellant and its
    predecessors.

[4]

The appellant asserts that, in determining the reasonable notice period,
    the motion judge erred in applying as a starting point one month per year of
    service, contrary to this courts decision in
Minott v. OShanter
    Development Co.
(1999),

42 O.R.(3d) 321, [1999] O.J. No. 5
    (C.A.).
Minott
rejected a one month per year of service rule of
    thumb because such an approach would elevate length of service above all
    relevant factors in determining reasonable notice (at para. 73).


[5]

We do not agree that the motion judge in this case applied any such
    approach. He considered the factors identified in
Bardal v. The Globe and
    Mail Ltd.
(1960), 24 D.L.R. (2d) 140 (Ont. H.C.) at p. 145: the character
    of the respondents employment, his length of service, his age and the
    availability of similar employment, having regard to his experience, training
    and qualifications. He considered various reported cases cited by the
    respondent where notice periods in the range of one month per year of service were
    applied to long service employees in senior technical positions, and concluded
    that these cases were comparable. He observed that the appellants position
    that 12 weeks notice was sufficient was remarkable and with no real
    rationale. He rejected as irrelevant two dated Nova Scotia decisions relied on
    by the appellant, where relatively short notice periods were applied for
    plaintiffs in non-technical positions who were initially terminated for cause.
    The motion judge did not apply a rule of thumb of one month per year of
    service; rather, he considered all of the
Bardal
factors, including,
    importantly, the specialized character of the respondents employment.

[6]

The appellant contends that the motion judge erred in finding that the
    respondents position as a radiation safety officer was highly specialized and
    technical, which in turn was relevant to the appropriate notice period and also
    to whether he had taken reasonable steps in mitigation.

[7]

We disagree. The appellants job functions were described at para. 5 of
    the motion judges decision, which excerpts a passage from the appellants own
    factum on the motion. The respondents responsibilities included the
    development and maintenance of a radiation safety program in compliance with
    applicable regulations, safety training and tours of the appellants facility
    and coordinating the safety program with local emergency authorities. The
    respondent undertook these functions in a highly regulated environment; indeed
    he was the site contact with the regulator, the Canadian Nuclear Safety
    Commission (the CNSC). When the respondent went on short term disability the
    appellant brought in an outside specialist to fill the role, a person with 25
    years experience working with the CNSC. There is simply no merit to the
    argument that the motion judge mischaracterized the appellants position when
    he concluded that it was specialized and technical.

[8]

The appellant also asserted in oral argument that the motion judge had
    proceeded in an unorthodox manner in inviting written submissions respecting
    a decision of the Superior Court in a wrongful dismissal action involving the
    same employer that had been released while his own decision was under reserve:
Vist
    v. Best Theratronics Ltd.
, 2014 ONSC 2867. In that case, a senior
    radiation physicist with 16 years service, who had been terminated with five
    weeks pay was awarded damages equivalent to six months notice. The motion
    judge distinguished
Vist
on the basis that there had been a 3.5 year
    interruption in the plaintiffs service in that case. There was nothing
    unorthodox about the motion judge requesting submissions on the
Vist
case; indeed, since the period of overall employment was the same, and a
    shorter notice period was recognized in that case, it was appropriate for the
    motion judge to afford the parties (and in particular the appellant, who might
    have sought to rely on this decision) the opportunity to address this case, as
    relevant to the reasonable notice period.

[9]

We therefore conclude that all of the relevant factors were properly
    identified and addressed by the motion judge in determining that 16 months was
    an appropriate notice period, and in firmly rejecting the appellants position
    that 12 weeks notice was sufficient.

[10]

On
    the mitigation issue, the appellant acknowledges that it had the burden of
    proving failure to mitigate, and that the standard of review is palpable and
    overriding error. The appellant argues that the motion judge made such an error
    in accepting that the respondent made reasonable efforts to mitigate his damages
    when, in the period of ten months between his termination and his
    re-employment, he applied for only four positions. According to the appellants
    evidence, there were at least 16 suitable positions advertised in a local
    newspaper for which the appellant had not applied. The appellant suggested that,
    because these positions might have used some of the skills the respondent
    possessed, he ought to have applied for the advertised positions.

[11]

The
    appellant referred to
Anderson v. Cardinal Health
, 2013 ONSC 6010, where
    the evidence was that the plaintiff had applied for 13 positions in eight
    months, and the defendant asserted that there were 27 positions for which she
    ought to have applied. In that case, the motion judge concluded that the
    availability of suitable alternative employment, relevant to both notice and
    mitigation, was a triable issue.

[12]

There
    are fundamental errors in the appellants approach: first, mitigation is not
    simply a question of counting up the number of job applications submitted by a
    terminated employee. The entire job search must be considered. The respondent
    provided evidence as to the steps he took in attempting to seek re-employment
    in the areas of medicine, public health, radiation safety and quality
    assurance. He was cross-examined about his efforts, and the motion judge found
    that these efforts were reasonable.

[13]

Second,
    the onus was on the appellant to prove that the respondent failed to take
    reasonable steps to find a comparable position reasonably adapted to his
    abilities:
Link v. Venture Steel Inc
., [2010] O.J. No. 779 (C.A.), at
    para. 73. The various advertised positions referred to by the appellant that
    the respondent had not applied for were rejected by the motion judge as completely
    inappropriate if they are intended to represent employment opportunities that
    the [respondent] should have been expected to pursue (eg. warehouse supervisor;
    warehouse personnel, order picker, general labourer, warehouse help, customer
    service rep, shipper receiver, etc.) In the
Anderson
case, the motion
    judge was unable to assess on the evidence before her, whether the positions
    that the plaintiff had not applied for were suitable. In the present case, that
    assessment could be readily undertaken.

[14]

All
    of the relevant evidence was before the motion judge on the mitigation issue,
    and the only reasonable conclusion was that the respondent acted reasonably in
    mitigating his losses when, ten months after his termination he was able to
    secure a contract position in the nuclear field.

[15]

Finally,
    the appellant raised in its factum concerns about the ability of the motion
    judge to decide the issues of reasonable notice and mitigation in a Rule 20
    motion. This is a case where it was manifestly fair and just for the motion
    judge to determine the issues he did in a summary manner. The motion judge had
    a full evidentiary record. The parties filed affidavits, and the respondent was
    cross-examined. There were no real credibility or even factual issues relevant
    to the period of reasonable notice and mitigation.

[16]

There
    was no error in the approach, reasoning or conclusions of the motion judge. Accordingly,
    the appeal is dismissed. The respondent shall have his costs of the appeal in
    the sum of $16,500, inclusive of disbursements and applicable taxes.

E.E.
    Gillese J.A.

K.
    van Rensburg J.A.

G.
    Pardu J.A.


