2011 QCCQ 11782, 2011 QCCQ 11782

Klein c. JDM Geo inc. 2011 QCCQ 11782 COURT OF QUEBEC Civil Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTEAL No: 500-22-173183-107 DATE: September 30, 2011 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ HYMIE KLEIN Plaintiff v. J.D.M.

GEO INC. and MAP ART PUBLISHING CORPORATION Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court is seized with an action in damages by the Plaintiff Hymie Klein ( Klein ) following the termination of his employment after 15 years with the Defendants J.D.M.

Geo Inc. ( J.D.M. ) and Map Art Publishing Corporation ( Map ). [ 2 ] At the outset of the hearing, the parties made several admissions: ▪ Klein began his employment with J.D.M. in 1995; ▪ Following the sale of J.D.M. to Map, Klein continued his employment until June 3 rd , 2010; ▪ Klein received $5, 910 representing a notice of termination of 8 weeks; ▪ the termination of his employment was due strictly to the financial difficulties of J.D.M.; ▪ Klein also admits that J.D.M. acted in good faith. [ 3 ] In light of these admissions and of the undisputed facts, the points in issue can be summarized as follows: ▪ What was the extent of Klein's responsibilities at J.D.M.? ▪ Is the notice of termination of 8 weeks reasonable or should it have been 13 months as claimed by Klein? ▪ If the Court disagrees with either proposition, what reasonable notice of termination should have been given to Klein? ▪ Should the notice of termination be calculated on an annual salary of $55,000, namely the salary paid to Klein prior to October 2009 or should it be calculated on $32,000, the salary he was earning at the time of termination?

The analysis [ 4 ] In matters such as the present in issue, deeling with the determination of what constitutes a reasonable notice of termination, the Court most consider a number of criteria that are well established and summarized in Le congédiement en droit québécois en matière de contrat individuel de travail [1] :

- the circumstances leading to the employment; - the nature and importance of the position; - the fact that the employee left a secure and gainful employment; - the intention of the parties; - the difficulty in finding another suitable employment; - the number of years of service; - the age of the employee at the time of termination. [ 5 ] Klein explains that J.D.M.'s previous owner, Michel Gagnon, offered him a position in 1995.

At the time, Klein had no employment, having previously sold his business, Camille Tabagie. [ 6 ] In the early years of his employment, Klein states he was responsible for everything within the company. [ 7 ] However, after the arrival of Mr.

Gagnon's spouse in the company and subsequently, after the arrival of Marcel St-Pierre ( St-Pierre ), the responsibilities of Klein were substantially reduced. [ 8 ] Klein does not argue that he held a managerial position, but by adding that he was the go to person, that he knew every aspect of the business and that all the employees came to him for information, he tries to somewhat embellish and enlarge his responsibilities.

Understandably, in a small company having less than 10 employees, the responsibilities of each are not so easily delineated. [ 9 ] However, from the testimonies of Klein and of St-Pierre, the Court can conclude that, between 2001 until the termination of his employment, Klein occupied the position of clerk, customer service. [ 10 ] In 2005, St-Pierre brought in his son in the company.

Klein asked St-Pierre if he was trying to push him out. [ 11 ] Sometimes thereafter, St-Pierre also asks Klein if he was considering retiring. [ 12 ] In July 2009, Klein undergoes a 5 by-pass surgery and is on sick leave until October 19, 2009. Upon his return, St-Pierre informs him that his work week will be reduced to 3 days a week. Two other employees in the company also saw their hours reduced. [ 13 ] Klein states this was a plan to cut my salary because the company would close. It was in the cards, six months to one year before.

The plan was to close the company because St-Pierre was retiring . [ 14 ] Klein received 8 weeks notice. At the hearing, St-Pierre is surprised to discover that Klein did not receive a 16 weeks notice. He explains that, after making certain inquiries and determining what the law required J.D.M. to pay to each employee, he decided to double the length of the notices each employee was to receive. [ 15 ] In the case of Klein, St-Pierre admits he should have received 16 weeks. [ 16 ] There is an abundance of case law on the subject, but every matter depends on the facts presented to the Court.

In deciding what constitutes a reasonable notice of termination, the Court considers the following facts which are specific to Klein: ▪ When Klein was hired by J.D.M. he did not leave a secure and gainful employment, he was not working; ▪ Klein was employed by J.D.M. and later on by Map for 15 years; ▪ He did not hold a managerial position, he was a clerk; ▪ If Klein was aware of every aspect of the business, as he states, he was certainly aware that as of 2004 the business started to decline. As St-Pierre explains, J.D.M. was in a business of selling maps and world guides.

With the advent of the internet and GPS devices, the business declined as of 2004 and in the 2008/2009 period, the business had declined by 52%; ▪ Certainly by 2005, Klein knew that St-Pierre would not be unhappy if he left the company; ▪ A couple of years later, Klein knew it was a question of time before the company would put an end to its operations; ▪ J.D.M. ceased operating and all of its employees lost their employment; ▪ At the time of the termination of his employment, Klein was 68 years old; ▪ Although, he did seek other employment, he was unsuccessful.

It is however surprising that he never asked for a letter of recommendation which could have helped in his endeavour; ▪ J.D.M. did not act in bad faith. J.D.M.'s economic difficulties are the sole reason for Klein loosing his employment. [ 17 ] In light of the facts enumerated above, the Court considers that a reasonable notice of termination should be set at sixteen weeks.

[ 18 ] This notice is to be calculated on the salary Klein was receiving at the time of his termination, namely $1,182.24 every two weeks, which represents an amount of $9,457.92 less $5, 910 already received, making an amount owing of $3,547.92. /s/ Diane Quenneville __________________________________ DIANE QUENNEVILLE, J.C.Q Me Marie-Pier Côté MILLER THOMSON POULIOT Attorneys for Plaintiff Me Marissa Frishman LEVINE FRISHMAN LANCRY Attorneys for Defendants Date of hearing: September 15, 2011