Ontario Court of Appeal Affirms 22-Month-Notice Award for Unskilled Worker

Connie Reeve

In its decision in Antonio Di Tomaso and Crown Metal Packaging Canada LP, released June 22, 2011, the Court of Appeal (the Court) revisited the importance of “character of employment” as a factor in determining notice periods and confirmed that there is no “upper limit” on the notice periods available to unskilled non-managerial employees.

THE FACTS
Mr. Di Tomaso was employed by Crown Metal for over 33 years as a mechanic and press maintainer. He had no managerial responsibilities. At the time of the termination of his employment by Crown Metal in February 2010, Mr. Di Tomaso was 62 years old. He earned approximately C$31 per hour.

THE “CONFLICTING” DECISIONS
On an application for summary judgment by Mr. Di Tomaso in his action for wrongful dismissal, the motion judge awarded him 22 months’ pay in lieu of notice.

On appeal, the employer argued that, in a prior case decided in 1995, the Court had established an “upper limit” of 12 months on the notice for clerical and unskilled labourers (see Cronk v. Canadian General Insurance Co.). In responding to this argument, Mr. Di Tomaso’s counsel relied on a 1999 decision from the Court, Minott v. O’Shanter Development Company Ltd., in which the Court had expressly stated that it did not regard the Cronk decision as establishing an upper limit of 12 months’ notice for all non-managerial or non-supervisory employees. Significantly, in that case the Court said:

“Moreover, the imposition of an arbitrary 12 months ceiling for all non-managerial employees detracts from the flexibility of the Bardaltest and restricts the ability of courts to take account of all factors relevant to each case and of changing social and economic conditions.”

THE COURT’S DECISION
In assessing the correctness of the motion judge’s decision in the Di Tomaso case, the Court placed some emphasis on the language used in two leading employment cases. From the seminal 1960 case on the factors to consider in determining the appropriate notice period, Bardal v. Globe & Mail Ltd., the Court relied on the following statement: “There can be no catalogue laid down as to what is reasonable notice in particular classes of cases.” From the 2008 landmark decision of the Supreme Court of Canada, Honda Canada Inc. v. Keays, the Court highlighted: “no one Bardal factor should be given disproportionate weight.”

The Court also cited with approval some decisions from the New Brunswick Court of Appeal that stand for the proposition that the character of employment (i.e., whether the employee was in a senior managerial position or was an unskilled labourer) is “a factor of declining relative importance.” The Court went on to say that this is particularly so if an employer attempts to use character of employment to assert that low-level, unskilled employees deserve less notice because they have an easier time finding alternate employment. In Di Tomaso,the Court concluded that “the empirical validity of that proposition cannot simply be taken for granted, particularly in today’s world.”

In the result, the appellate court declined to interfere with the motion court judge’s award of 22 months’ notice to Mr. Di Tomaso, notwithstanding that it agreed that the 22 months awarded by the motion judge to Mr. Di Tomaso was at the upper end of the range of notice appropriate for a similarly situated employee.

It is noteworthy that Mr. Di Tomaso’s termination of employment occurred on February 26, 2010 and the summary judgment motion occurred on October 19, 2010, a mere eight months into the notice period, and that a trust was imposed on the award requiring Mr. Di Tomaso to account for any mitigating earnings.

CONCLUSION
As in its previous decision in Minott, the Ontario Court of Appeal has once again rejected efforts to undermine the flexibility of the Bardal test or to embrace an approach to assessing notice periods that would give unnecessary prominence to one of several factors. So, while upper limits and “rules of thumb” would make estimating notice periods easier, the Court’s emphasis on flexibility remains true to the spirit of the iconic Bardal decision and the underlying purpose of reasonable notice, which is to provide a terminated employee sufficient time to find comparable employment, having regard to that employee’s circumstances and the specific facts of the case.

For further information, please contact:

Connie Reeve 416-863-2778

or any member of our Labour & Employment Group

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