In Kondaj v. Crossbridge Condominium Services Ltd., 2025 ONSC 3905, Justice Koehnen had a situation where a 42 year old Condo Manager of 3.5 years service was terminated by the new provider when they took over the management contract.
The Plaintiff sued both the previous provider and the new provider. The Court had to figure out which employer was responsible for common law notice as it is clear from the ESA that the new provider was solely responsible for statutory termination pay and severance pay based on the employees total years of service. The new provider had in fact paid those ESA amounts.
The Judge found the new provider was also on the hook for common law notice.
This is what the Judge said
[32] In my view, interpreting the Act to impose common law notice obligations on the new service provider is more consistent with the legislator’s intention to stabilize employment than an interpretation that places the obligation on the former provider.
[33] Assigning common law notice to the new service provider creates a stronger incentive for the new provider to retain the existing on-site employees because failing to do so would expose the new provider to significant financial liability. Retaining those employees would not impose any immediate additional cost on the new provider.
[34] Conversely, placing the burden on the former provider offers little incentive for the new provider to retain staff. If anything, it may incentivize the new provider to terminate existing employees. If the new provider takes on existing employees and terminates them at some later point, there is no doubt that the new provider would be liable for common law notice. Subsection 10(2) of the Act requires notice be calculated in a way which includes the employee’s service with the old provider. If Duka were correct, the new provider could avoid that risk by simply paying statutory termination and severance, amounts that are typically much lower than common law notice, thereby avoiding the risk of common law notice if it had to terminate those employees at a later point in time.
[35] Moreover, such an arrangement could be exploited to harm competitors: a new provider could force the former provider to bear the cost of common law notice, even when the contract was lost through no fault of the old provider. This would undermine employment stability in the building services sector, an outcome clearly at odds with the legislator’s intention.
[36] Dividing liability between old and new service providers would also lead to unnecessary complexity. It would require employees to pursue the new service provider for statutory benefits and the old service provider for common law benefits. Forcing workers to assert their legal rights in multiple, deliberately complex legal regimes is inconsistent with the legislator’s intention of protecting vulnerable employees.
In a assessing a notice period of 10 months the judge took into account not only the usual Bardal factors of age, length of service and character of employment, but also relied heavily upon two other factors :
a) the poor economic market for condos in the Toronto area.
b) the fact that the Plaintiff took 11 months to find a job after applying for 170 jobs.
My Comments:
I have often wondered why if the purpose of determining reasonable notice is to determine how long a person in similar circumstances should take to get a new comparable job, and that person has diligently looked for a job, we simply don’t look at long its actually took for the Plaintiff to get a comparable job and award the notice period accordingly.
Instead we first come up with this notional notice period and only then look at. what actually happened. If the Plaintiff was unemployed longer than the notional notice period, he or she is simply out of luck. But if the Plaintiff finds a job in less time than the notional notice period, then their damages are reduced by the mitigated earnings.
This is how this Judge dealt with that issue :
[92] In my view, the cases the Plaintiff relies on more accurately reflect the factors at play in this case, especially the downturn in the condominium market in Toronto. As noted, it took the Plaintiff 11 months to find new employment. Although the amount of time it takes a plaintiff to find re-employment is not the determining factor because it would place excessive weight on the plaintiff’s subjective circumstances, at the same time, the underlying purpose of common law notice is to give the terminated employee financial support during the period that it takes to find a new position. The particular circumstances of the of the job market a plaintiff faces cannot therefore be ignored. There was no suggestion that the Plaintiff was “taking time off” after his termination. As noted earlier, I find that the Plaintiff made diligent efforts to find new employment by applying for a significant number of jobs, across a wide geographical area and at varying levels of responsibility. In my view the 10 months notice awarded in Frederiks and James is equally appropriate to award here.
I find the comments about the ” particular circumstances of the job market a plaintiff faces” particularly interesting.
Rarely do I see either lawyer lead actual relevant evidence on this issue, even something as basic as the rate of unemployment in the locality of the plaintiff at the relevant time. Perhaps there are even more detailed studies or stats on particular industries. For instance, now that we are facing the Trump tariffs in particular sectors of our economy, it would seem logical that someone is probably collecting stats on the rate of unemployment and layoffs in the car parts sector. Surely this would be helpful evidence to lead in a wrongful dismissal case as opposed to some 10 year old case when the economy may have been quite different.
I should note that the Plaintiff’s lawyer in this case was Kimberly Sebag of Lecker and Associates. My son, Matthew Fisher, is a partner in that firm.
If you would like a copy of this case, email me at barry@barryfisher.ca
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