B E T W E E N:

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MARTIN KIDECKEL

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Howard Markowitz, for the Respondent

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Plaintiff$/$Respondent

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$-$ and $-$

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GARD$-$X AUTOMOTIVE REFINISH INC.

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Charles Wagman, for the Appellant

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Defendant$/$Appellant

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Heard at Toronto: August $27,2019$

REASONS FOR DECISION

D$.$L$.$ Corbett J$.$:

$[1]$ This appeal from the Small Claims Court raises four issues:

a$.$ Whether the trial judge made a palpable and overriding error of fact in finding that the plaintiff was out of work for two weeks before commencing new employment after his dismissal from the defendant;

b$.$ Whether the trial judge erred in law in declining to $$back$-$fill$$ the plaintiff$$s earnings after he commenced new employment such that his increased earnings in his new job would be used to cover a two week period without earnings;

c$.$ Whether the trial judge erred in law in calculating damages for wrongful dismissal on the basis of the hourly rates of pay rather than on the basis of gross earnings for the period of reasonable notice;

d$.$ Whether the trial judge erred in awarding the plaintiff damages for discrimination on the basis of age.

$[2]$ For the reasons that follow I would dismiss the appeal subject to a minor adjustment in the damages awarded for wrongful dismissal: the trial judge$$s conclusions respecting mitigation were available to him, excepting only that he could not award damages for reduced hourly wage without also considering overtime income in all the circumstances of this case. In respect to the damages awarded for discrimination, since there was a valid claim for wrongful dismissal, the discrimination claim was properly before the Small Claims Court and the trial judge did not err in making the damages award that he did.

Facts

$($a$)$ Mitigation Issue: Basic Facts

$[3]$ Mr Kideckel was employed by Gard$-$X as a delivery driver from June $2006$ to May $30,2014.$ His hourly rate was $$12.$ He worked $37\mathrm{.}5$ hours per week, resulting in weekly remuneration of $$450.$ He did not work overtime for Gard$-$X$.$

$[4]$ Gard$-$X gave Mr Kideckel notice on February $21,2014$ that his employment would terminate effective May $30,2014$: the parties agree and the trial court found that Mr Kideckel received three months$$ working notice.

$[5]$ Mr Kideckel found replacement employment. His start date at this new employment was disputed and is addressed below. In this new employment, Mr Kideckel worked as a driver, with similar responsibilities to those in his former employment with Gard$-$X$.$

$[6]$ Mr Kideckel was paid $$11$ per hour in his new job. Mr Kideckel also worked some overtime in his new employment, for which he was paid time$-$and$-$a$-$half $($$$16\mathrm{.}50$ per hour$).$

$[7]$ When taking his regular and overtime hours into account, the trial judge found that Mr Kideckel earned more at his new employment than he had at Gard$-$X: in $2014,$one or two thousand dollars more$$ and in $2015,$ more than $$3,000$ in excess of what he would have made at Gard$-$X$.$ These findings are not challenged on appeal.

$($b$)$ Mitigation Issue: Date of Start of New Employment

$[8]$ In his claim, Mr Kideckel pleaded that he $$immediately$$ found new employment after he left Gard$-$X$.$ At trial, he testified that he started work two weeks after leaving Gard$-$X$.$

$[9]$ Mr Kideckel did not provide a copy of his first pay stub showing the date on which he commenced his new employment. He did produce one later pay stub from his new employer, dated September $25,2014.$ Gard$-$X argues that it should be inferred from the information on that pay stub that Mr Kideckel started his new job on June $2,2014,$ the next business day after his employment ended at Gard$-$X$.$ This reading of the pay stub was not put to Mr Kideckel in cross$-$examination nor was it argued to the trial judge.

$($c$)$ Age Discrimination Behind Mr Kideckel$$s Termination

$[10]$ Mr Kideckel was not terminated for cause. The trial judge found as a fact that Mr Kideckel was required to retire because he reached the age of $65.$ This finding was available on the evidence and is reasonable. The trial judge found that this forced retirement was discrimination on the basis of age within the meaning of the Ontario Human Rights Code and awarded general damages for this discrimination fixed at $$8,000.$ These findings are not challenged on appeal: rather, the appellant says that the discrimination claim was not properly before the Small Claims Court, and had to be pursued before the Ontario Human Rights Tribunal.

Decision of the Trial Judge

$($a$)$ Period of Unemployment

$[11]$ The trial judge found that Mr Kideckel was unemployed for two weeks before starting his new job. He awarded damages for wrongful dismissal for two weeks$$ lost wages