Un gestionnaire de holdings familiaux reçoit 18 mois en indemnité de départ

Par Me Paul-Matthieu Grondin

Dans une décision de la Cour supérieure, Lang c. 137579 Canada inc., un gestionnaire de 83 ans, qui travaillait aux affaires financières d’une famille depuis près de 55 ans (mais « seulement » une vingtaine d’années auprès des compagnies défenderesses spécifiques) reçoit 18 mois en indemnité de départ à la suite d’un congédiement sans motif, ainsi que d’un débat judiciaire sur la nature de son contrat.

Il est toujours intéressant de suivre les développements jurisprudentiels de l’article 2091, ce qui est le but principal de ce blogue, comme les lecteurs le sauront peut-être. Dans le cas qui nous occupe, on reprochait à l’employé gestionnaire son attitude ainsi que de ne pas avoir exécuté certaines transactions en temps utiles. Le juge n’y a pas trouvé motif, et ainsi s’est penché sur le quantum de l’indemnité de départ :

[137]     Mr. Lang is entitled to an indemnity in lieu of notice of termination equivalent to eighteen months’ salary.[68]

[138]     In reaching this conclusion, the Court relies on the fact that:

138.1. Mr. Lang worked for defendants during many years and spend his whole professional life working for the family entities (since 1961).

138.2. He was a dedicated and irreproachable employee (despite the differences of opinion he may have had with Mr. Borrow in some respects) – He has been described as very easy to deal with, as a machine (in a positive way) and as someone who never makes a mistake and with whom everything comes back in time and in orderly manner.

138.3. He had significant responsibilities – He was the family member who had stewardship of the family assets including the very significant portfolios of defendants.

138.4. It is almost impossible for Mr. Lang to find an identical or similar position given his age.

[139]     What about the arguments raised by defendants?

[140]     Although a terminated employee must make efforts to find new employment, the onus is on the employer to show that the employee did not make reasonable efforts to find work. It is not contested that Mr. Lang undertook no steps to mitigate his damages.

[141]     The onus is also on the employer to show that the employee could have found work.[69] Such evidence has not been administered.

[142]     The Court is of the opinion that it is unlikely that the steps that Mr. Lang could have taken would have been successful, particularly given his age, the nature of the work performed and the fact that he worked for almost 60 years for the same group of entities.

[143]     This is not one of those situations where the Court could conclude to inadequate job search efforts and reduce the amount of the indemnity, or deny the claim. This is one of those situations where the Court concludes that job search efforts would have most likely be pointless. An employee does not have to take pointless steps.

[144]     It is true that Mr. Lang continues to perform work for other entities of the family, but the remuneration he receives is not to be taken into account by the Court. Amounts that would have been earned even if the employee had not been terminated shall not be deducted from the indemnity.[70]

[145]     It is also true that the defendants paid him his full remuneration until the end of May 2018. While they argue the amount of work required was extremely limited for this period, the evidence adduced is to the effect that Mr. Lang was still performing his responsibilities, as usual. For example, he attended a trustees’ meeting in October 2017 and sold the Cisco and Oracle shares when instructed to do so in February 2018.

[146]     In any event, the defendants deliberately defer sending a notice of termination to Mr. Lang for a period of five months. They cannot, on the one hand, defer termination and, on the other hand, claim that the indemnity should be reduced to consider the salary paid to the employee during that period of time and allege that the amount of work required was not significant.