Ontario Employment Law: Summary Judgment In Wrongful Dismissal Actions

In Thorne v. The Hudson Bay Company, a case decided September 21, 2011, the Plaintiff, a 37.5 year employee who had been dismissed without just cause sued for wrongful dismissal after receiving a bare-bones severance package that was limited to her Employment Standard Act minimums.

The Plaintiff, an Allocation Associate,  moved for summary judgment, arguing that since there were few factual issues which were contentious between the parties, the judge could rule on the period of reasonable notice she was owed "without the need for the forensic machinery of a trial".

Based on consideration of the legally relevant factors, the Defendant employer took the position that she was owed 12-16 months of pay in lieu of notice. Considering the same factors, the Plaintiff employee took the position she was owed 24-30 months, a very divergent position indeed.

Under Rule 20.04 of the Ontario Rules of Civil Procedure, summary judgment motions are appropriate where the court is satisfied that there is "no genuine issue requiring a trial."

In the affidavits filed by the parties upon the motion, they took starkly contrasting views on the character of the Plaintiff's employment. While she did not have a supervisory function, the Plaintiff claimed that her job was far from entry-level and clerical. She, for example, provided operational support to the high volume merchandise industry which required a solid grasp of the employer's business. The Defendant argued that the Plaintiff's job was clerical, and stated she merely produced purchase orders.

Campbell J. held that a trial would be required to resolve the disagreement:

Having carefully examined the evidence that has been provided by the parties on this issue, it is apparent that they view the nature of the plaintiff’s job very differently. Their disagreement on this issue is not just a matter of the appropriate legal characterization of the job, but rather extends to the nature and details of the responsibilities performed by the plaintiff. The evidence filed by the parties on this motion, none of which has yet been subjected to cross-examination, is in stark conflict. In my opinion, it is simply not possible to fairly and appropriately resolve this important issue without the machinery of a trial. 

Faced with this fundamentally conflicting evidentiary record it is simply not possible to resolve this important factual dispute without the forensic machinery of a trial. Without hearing viva voce testimony from these witnesses as to their understanding of the specific details of the plaintiff’s job responsibilities, and being able to assess their credibility and the reliability of their evidence, and seeing the impact of cross-examination, there is simply no fair and accurate way of resolving the dispute between the parties on this important issue.

Hence, Justice Campbell concluded that in all the circumstances there was a genuine issue for trial given that character of employment remains a relevant factor in the determination of reasonable notice:

I appreciate that the court is entitled to assume that the parties have put forward their best evidence on the summary judgment motion and that, if the case were to go to trial, no additional evidence would be presented. See: Rogers Cable TV Ltd v. 373041 Ontario Ltd., 1994 CanLII 7367 (ON SC), (1994), 22 O.R. (3d) 25 (Gen.Div) at para. 4; Bluestone v. Enroute Restaurants 1994 CanLII 814 (ON CA), (1994), 18 O.R. (3d) 481 (C.A.) at para. 30; Dawson v. Rexcraft Storage & Warehouse Inc. 1998 CanLII 4831 (ON CA), (1998), 164 D.L.R. (4th) 257 (Ont.C.A.) at para. 17. But in some cases, like the present one, that assumption is of little assistance in actually resolving the factual dispute between the parties, as the court is limited to paper review of the evidence provided by the parties, without greater explanation, and wholly untested by cross-examination.

As an aside, for those judges and academic who have doubted the importance of character of employment in the determination of reasonable notice, Justice Campbell had this to say:

. . . it cannot be said that the resolution of this factual issue is of no importance to the outcome of this case. There are authorities which suggest that the character of the employee’s employment may be “a factor of declining relative importance” in the overall analysis of all of the Bardal factors. See: Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (CanLII), 2011 ONCA 469, at para.22-29; Medis Health and Pharmaceutical Services Inc. v. Bramble 1999 CanLII 13124 (NB CA), (1999), 175 D.L.R. (4th) 385 (N.B.C.A.) at para. 64; Vibert v. Paulin 2008 NBCA 23 (CanLII), (2008), 291 D.L.R. (4th) 302 (N.B.C.A.). Nevertheless, unless and until the governing legal standard for determining “reasonable notice” is changed in a more fundamental way, the character of the employment of the employee will properly remain a factor that must be taken into account in an appropriately “holistic review” of all of the Bardal factors. The fact that the parties in this case have devoted so much energy to producing evidence on this issue demonstrates their own appreciation of this legal reality.

When it comes to what he himself refers to as the "controversial scope of summary judgment motions", there is no doubt that Justice Campbell's reasons for decision raise as many questions as they do answers.

- Robert Tanha, Toronto

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Ontario Court of Appeal: No Hard Cap on Notice Entitlement of Non-Managerial or Unskilled Employees

In Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, a decision of the Ontario Court of Appeal released June 22, 2011, the appellant, Crown Metal Packaging ("CMP") appealed from an October, 2010 decision of the Superior Court Judge, Justice Beth A. Allen, granting the respondent, Mr. Di Tomaso summary judgement in a wrongful dismissal action under rule 20.

Background:

Mr. Di Tomaso was an employee of CMP for over 33 years as a mechanic and press maintainer. On September 23 2009, Mr. Di Tomaso was informed that his services were no longer required at CMP. However, just before Mr. Di Tomaso had left, he was notified that his employment would be extended by several weeks. In fact, CMP in total issued 5 different termination dates, which in effect extended Mr. Di Tomaso's employment just before each previous termination date. Extension letters were delivered by CMP, as follows:

• 1. September 9, 2009, with a termination date of November 6, 2009;
• 2. November 4, 2009, with a termination date of December 18, 2009;
• 3. December 15, 2009, with a termination date of February 19, 2010;
• 4. February 18, 2010, with a termination date of February 26, 2010; and
• 5. February 24, 2010, confirming the termination date of February 26, 2010

Claims by Mr. Di Tomaso:

Mr. Di Tomaso's action claimed that CMP failed to provide reasonable notice or termination pay as required by the Employment Standards Act, 2000 ("ESA"). He also sought common law damages for wrongful dismissal equivalent to 24 months pay.

CMP's Position:

The employer claimed that its first notice of termination (September 9, 2009) was valid, and alleged that Mr. Di Tomaso's subsequent employment constituted "working notice".

Concerning the Plaintiff's common law claim, CMP's position was that at most, Mr. Di Tomaso was entitled to 12 months notice, based on the character of his employment. CMP emphasized that Mr. Di Tomaso was an "unskilled" and "low level worker".

Motion Judge's Reasoning:

On the issue of working notice, the motion judge reviewed the ESA regulation that authorizes an employer to count a period of work commenced after the termination is served but before the termination date (temporary employment)- compared to an employee's statutory notice of entitlement: Termination and Severance of Employment, O. Reg. 288/01, s. 6 ("Regulation"). For instance, the Regulation states:

6. (1) An employer who has given an employee notice of termination in accordance with the Act and the regulations may provide temporary work to the employee without providing a further notice of termination in respect of the day on which the employee’s employment is finally terminated if that day occurs not later than 13 weeks after the termination date specified in the original notice.

(2) The provision of temporary work to an employee in the circumstances described in subsection (1) does not affect the termination date as specified in the notice of the employee's period of employment.

CMP was of the view that all of its extensions was valid, as each was for a period of less than 13 weeks. Therefore, it claimed, Mr. Di Tomaso was provided with working notice up until the last notice of termination dated February 24, 2010. Mr. Di Tomaso argued to the contrary, stating that various period of extensions should be viewed cumulatively which would exceed the 13 week period set out in s. 6(1) of the Regulation.

In agreeing with Mr. Di Tomaso's position, the motion judge stated:

... The legislation clearly allows for notices temporarily extending termination if the final date of termination in respect of the extension is not more than 13 weeks after the date of the initial termination notice. That interpretation makes practical sense since there would be no certainty for an employee as to when his employment would finally end if the employer was not limited in the length of extensions of employment. (para 19).

Furthermore, the motion judge stated that there is a requirement that the notice of termination be "clear and unequivocal".

The motion judge also rejected CMP's position that Mr. Di Tomaso's entitlement to notice was capped at 12 months due to the non-managerial and unskilled nature of his position.. The motion judge referred to factors in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.) ("Bardal"), to determine the appropriate notice period. The Bardal factors include: the character of the employment, the employee's length of service, the employee's age, and the availability of comparable employment in the market.

In order to support its position concerning a capped limit of entitlement to notice at 12 months, CMP relied on the court's ruling in Cronk v. Canadian General Insurance Co. 1995 CanLii 814 (ON CAN), (1995), 128 D.L.R. (4th) 147 (“Cronk”). The employer contended that the Cronk ruling establishes a capped limit of 12 months notice for clerical and unskilled workers.

Mr. Di Tomaso relied on the more recent case of Minott v. O’Shanter Development Company Ltd. 1999 CanLII 3836 (ON CA), (1999), 168 D.L.R. (4th) 270 (“Minott”) to counter the argument that there is a cap of 12 months. Specifically, Laskin J.A. stated in Minott:

I do not regard this court's decision in Cronk as establishing an upper limit of 12 months notice for all non- managerial or non-supervisory employees. At most it deals with one occupational category, clerical employees. Moreover, the imposition of an arbitrary 12 months ceiling for all non-managerial employees detracts from the flexibility of the Bardal test and restricts the ability of courts to take account of all factors relevant to each case and of changing social and economic conditions.

Motion Judge's Findings on Notice:

The motion judge agreed that there is not a hard cap of 12 months notice. Additionally, after considering the Bardal factors, the judge held that Mr. Di Tomaso was entitled to 22 months of notice.

Mr. Di Tomaso was 62 years old on the date of his termination and had served 33 years with CMP. He also made efforts to mitigate his damages by looking for other employment in the work force.

Issues on Appeal:

The employer argued on appeal that the motion judge erred in finding that Mr. Di Tomaso did not have clear and unequivocal notice of termination until February 24, 2010; and that Mr. Di Tomaso received reasonable working notice of termination in light of his status as a non-managerial employee.

MacPherson J.A. did not accept either argument for the following reasons:

Termination Date

MacPherson J.A agreed with the motion judge that the Regulation takes into account a single period of temporary work that cannot exceed 13 weeks.

In addition, he added that "clear and unambiguous" notice of termination must incorporate the final termination date. The first four termination dates came and passed. It was not until the final termination notice on February 24, 2010 that Mr. Di Tomaso's termination was carried out as stated in the letter.

Bardal Factors

MacPherson J.A. agreed that there is not a hard cap of 12 months notice for unskilled low level workers. He also agreed with the motion judge's application of the Bardal factors to the instant case.

The appeal judge also stated that giving more weight to the particular factor of character of employment was unwarranted. MacPherson cited Bastarache J in the Supreme Court decision of Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII), [2008] 2 S.C.R. 362, where he asserted that "no one Bardal factor should be given disproportionate weight".

MacPherson J.A. noted that the proposition that junior lower skilled workers deserve less notice because they have an easier time finding employment has not been empirically proven.

Disposition:

The appeal was dismissed with costs to the employee/Respondent..

- Alim Ramji, Toronto

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Ontario Employment Law: Determining The Appropriate Period Of Reasonable Notice

In Harvey v. Shoeless Joe's Limited, a May 26, 2011 summary judgment ruling of Stinson J. of the Ontario Superior Court of Justice, the Court deals with the two of the questions that are central in every wrongful dismissal action:

1. Is the Plaintiff entitled to reasonable notice of termination at common law?
2. If so, what length of notice period is the Plaintiff entitled to receive ?

In quickly disposing of the first question, Stinson J. pointed out the Defendant's written offer of employment to the Plaintiff contained no provision with respect to notice of termination and that there was no evidence of discussion between the Plaintiff and the Defendant that could be taken to limit or otherwise vary the "implied contractual right to reasonable notice of termination."

With respect to the second question, the appropriate period of notice, Stinson J. turned to the oft-cited Bardal factors.

Length of employment

The Plaintiff was a short-term employee with only 5.5 months of service which strained towards a lower period of notice. That said, Stinson J. decidedly rejected the employer's argument that awarding a short term employee of less than 6 months of service more than a month's salary would open the floodgates to claims by short-term employees:

The defendant argues that granting a notice period in excess of one month would “open the floodgates” to claims by short term employees. I do not accept that submission. Firstly, the Bardal factors have stood the test of time for half a century, and have been repeatedly applied and accepted by trial and appellate courts in determining appropriate notice periods in a wide range of cases. Where trial judges have been too lenient or too strict, appellate courts have stepped in to correct errors in the application of the principles. Secondly, as the defendant unsuccessfully attempted in the present case, it remains open to an employer to protect itself by requiring the prospective employee to agree to a contractual termination arrangement that would take their relationship out of the common law notice scheme.

Character of employment

The Plaintiff held the position of Vice President Operations at a salary of $130,000.00, which involved many supervisory duties. This factor supported a higher period of notice.

Age

The Plaintiff's age, 41, was a neutral factor.

The availability of similar employment

Given that it took the Plaintiff 10 long months to find new work, this factor spoke for itself and favoured a higher period of reasonable notice.

In light of these four factors, Stinson J. concluded that the Plaintiff was entitled to 2.5 months of pay in lieu of notice.

If you believe you have been wrongfully dismissed, please contact a lawyer who can advise as to your rights under the Ontario Employment Standards Act and at common law.

- Robert Tanha, Toronto

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Ontario Human Rights Tribunal Digest - May 1 - May 30, 2011

Each month, Wise Law Blog reviews important decisions from the Ontario Human Rights Tribunal.

SUBSTANTIVE RULINGS

Heather Knibbs v. Brant Artillery Gunners Club In. et al. and Stephanie Long v. Brant Artillery Gunners Club Inc. et al.

In this epic Application, Heather Knibbs and Barbara Long, two bartenders working for a gun club, alleged that they had been discriminated against by the Respondent employer, contrary to the Ontario Human Rights Code.

Heather Knibbs alleged that she had been discriminated against on the basis of disability and that the Respondents had reprised against her for asserting her rights under the Code, and for commencing a human rights proceeding.

More specifically, Ms. Knibbs identified the following specific acts, which she alleged constituted discrimination on the basis of disability or reprisal:

1. While she was on a medical leave recommended by her doctor (because of problems with depression, diabetes, and cholesterol, partly brought on because of her father's death), she was demoted from full-time to part-time;
2. During her medical leave, the Respondents published confidential medical information (revealing her health problems) about her in the workplace, exacerbating her depression;
3. The Respondents sent her a letter stating that she could not return to work until she was fully recovered and symptom-free;
4. After she sent a letter from her legal counsel advising the Respondents that they were in breach of the Code, the Respondents retaliated by falsely accusing her of misconduct, including theft of money and misbehaviour pre-leave that had resulted in five complaints being launched against her apparently by fellow staff members;
5. The Respondents sent a letter to the police in connection with the missing money, falsely suggesting that the Applicant was involved, and maligning her character; and
6. She was laid off while on a bona fide medical leave.

Barbara Long alleged that she had been discriminated against on the basis of sex and on the basis of her association with Ms. Heather Knibbs, a person who she alleged could be identified by a prohibited ground of discrimination, namely disability (or perceived disability).

More specifically, Ms. Long alleged:

1. After she took a medical leave for an injury she sustained at her other job and became pregnant, the Respondents prevented her from performing her regular duties and reduced her work hours;
2. The Respondents continued to prevent her from performing her regular duties and working her regular hours even after she provided the Respondent with a doctor's note stating that she was capable of working her pre-pregnancy hours; and
3. Because of her relationship with Ms. Knibbs, the Respondents falsely accused her of stealing money and suspended her, delivered a letter to the police making unfounded allegations against her in addition to Ms. Knibbs.

The Respondent, in its submissions denied that any discrimination or reprisals had taken place, stating that all of its decisions with respect to Ms. Knibbs and Ms. Long had been properly taken, based on operational needs or were appropriate in the circumstances, and, in any event, always in accordance with the Code.

Heather Knibbs' Application

Issue #1: Did the Respondents discriminate against Ms. Knibbs because of her disability?

The Tribunal found that Ms. Knibbs' diabetes and depression easily fell within the Code's definition of disability. With that aside, the Tribunal turned to consider each one of the alleged acts of discrimination.

Firstly, since Ms. Knibbs' contract of employment guaranteed her at least 40 hours per week, coupled with the fact that she had a priority in scheduling, the Respondent's demotion of Ms. Knibbs' status from full-time to part time, was discriminatory. The Respondent's claim that its financial situation required a significant reduction of Ms. Knibbs' hours, did not square with the fact that total staff hours had not been reduced dramatically.

Further, Mr. Bourne, a supervisor of Ms. Knibbs, had testified that the Applicant had lost priority in scheduling because she was not working. According to the Tribunal, this was an admission by the Respondent that the Applicant's status had changed merely because she was on a disability-related leave. This was clearly discriminatory.

Second, the Respondent's requirement that Ms. Knibbs provide a letter from a doctor stating that she no longer has any symptoms of depression, and her diabetes fully under control was discriminatory. The Tribunal flatly rejected the Respondent's bald assertion that their insurance company had required that such a letter be sent to the Applicant.

The employer has a duty to permit an employee with disability-related needs to return to the workplace to attempt to accommodate him or her to the point of undue hardship. An employer must give thought or consideration to the issue of accommodation, which the Respondent had not done, in violation of the Code.

Third, the Respondent's publication of Ms. Knibbs personal medical information in the workplace, including the the fact she had depression , stigmatized her and irreparably poisoned the work environment. This clearly constituted discrimination.

In so holding, the Tribunal underlined the following :

1. The Respondents had put up the posting in a public area of the workplace without Ms. Knibbs' consent;
2. The posting was up for at least four days;
3. A significant number of Ms. Knibbs' fellow employees saw and read the posting;
4. While some of Ms. Knibbs' co-workers knew she had diabetes, few knew she suffered from depression;
5. When the Respondent finally pulled the posting down at the request of Ms. Knibbs (who had become aware of it), it took no other steps to repair or remedy the situation.

Fourth, the Tribunal found that the layoff that the Applicant had been subjected to during her medical leave, was also discriminatory. In so deciding, the Tribunal applied a but-for test; but-for the disability-related leave, the Applicant would not have been laid-off.

Issue #2: Did the respondents subject Ms. Knibbs to reprisal for asserting her Code-protected rights and starting a human rights proceeding?

The Tribunal found that the Respondent's demand that the Applicant meet with the Respondents to discuss her purported misconduct, including the improper taking of money from the Respondent Company and a number of complaints that had apparently been launched against her by fellow staff members pre-leave, was a reprisal for the Applicant asserting her Code-protected rights.

The Tribunal found:

• The Applicant's honesty was beyond reproach. There was no evidence whatsoever implicating Ms. Knibbs in any wrongdoing pre-leave, aside from the fact she was an employee at the time the money was taken.
• With respect to the "alleged employee complaints" against Ms. Knibbs and none of the employees who had apparently made the complaints, gave testimony in support of them.
• The timing of the demand defied coincidence. It had followed within two weeks of the letter sent by Ms. Knibbs' legal counsel asserting that the Respondents were in breach of the Code's prohibition against discrimination on the ground of disability.

Further, the Respondent's letter to the police, which had referenced Ms. Knibbs' human rights Application, was a direct and intentional reprisal for the making of such an application, especially in light of its timing and the fact that the allegations contain therein against Ms. Knibbs were patently false.

Issue #3: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, Ms. Knibbs was awarded $20,000.00 by the Tribunal. In justifying its decision as to quantum, the Tribunal stated:

I find that the respondents' discriminatory treatment of Ms. Knibbs was serious. The respondents, despite being aware of Ms. Knibbs' vulnerability because of the death of her father and her associated health problems, subjected her to a series of acts of discrimination based on her disability, a threat of reprisal, and an act of reprisal.

Lost Income

Worthy of specific note, the Tribunal found that Ms. Knibbs' job search efforts, applying for eight jobs and attending at one interview over 3 months in a depressed economy (while in a frail state of health), was sufficient to discharge her duty to mitigate her losses.

Barbara Long's Application

Issue #1: Did the Respondents discriminate against Ms. Long because of disability?

Yes, because the Respondents had denied Ms. Long light duties after she suffered a workplace injury at another job. In fact, the Tribunal found that the Respondent had not even attempted to accommodate Ms. Long's medical needs to the point of undue hardship, a blatant violation of the Code. The Respondents' taking of the position that Ms. Long had to do the whole of the job, or nothing at all, was discriminatory on its face, as was their position that Ms. Long did not have to be accommodated because she was only a part-time, as opposed to full-time, employee.

The Respondents presented no evidence that arranging for someone to assist Ms. Long with her heavy duties until she had recovered from her injury, would have caused them undue hardship.

Issue #2: Did the Respondents discriminate against Ms. Long because of sex?

The Tribunal found that the Respondents had discriminated against Ms. Long by denying her overnight shifts and her usual hours based on their view that pregnant women can not safely do such work given their physical state. This was direct discrimination based on stereotypes, and was inexcusable. The Tribunal pointed out that the discrimination based on sex continued even after Ms. Long had provided a letter to the Respondents which stated unequivocally that she was fit to perform work at night; and resume her pre-pregnancy hours.

Issue #3: Did the Respondents discriminate against Ms. Long because of her relationship, association and dealings with a person identified by a prohibited ground of discrimination?

Yes, Ms. Long had faced reprisals for associating with Ms. Knibbs through employment and family, which the Respondents were aware of. The Tribunal found that:

• Ms. Long was directed not to speak with Ms. Knibbs following her commencement of a human rights proceeding against the Respondents;
• She was directed not to live with Ms. Knibbs, and not long thereafter, Ms. Long was suspended for an alleged act of misconduct and a letter was sent by the Respondents to the police making allegations against her (which were totally unsubstantiated).
• The letter made explicit reference to the Human Rights Application, to Ms. Long and Ms. Knibbs familial relationship and to the fact they were living together. It was clearly a retaliation.

As Ms. Knibbs was a person identified (or perceived to be identified) by a prohibited ground of discrimination, namely disability, this constituted discrimination within the meaning of the Code.

The Tribunal concluded that the cumulative effect of the Respondents' discriminatory actions, in particular its failure to take any steps to resolve Ms. Long's suspension, had effectively severed the employment relationship.

Issue #4: Quantum of Damages

Injury to Dignity, Feelings and Self-Respect

With respect to this head of damages, the Tribunal awarded Ms. Long $13,000.00. In justifying its decision as to quantum, the Tribunal noted:

. . . I find that the respondents' offensive treatment of Ms. Long was also serious. The respondents failed to accommodate her disability-related needs, which resulted in a loss of work hours. More seriously, knowing that Ms. Long was vulnerable as a soon-to-be single mother, the respondents cut her hours because she was pregnant. To make matter worse, the respondents then suspended Ms. Long from her job and an Officer of the Club intentionally tried to harm her by trumping up allegations to incite the police to investigate and charge her with criminal offences. The further loss of work hours obviously caused her significant stress because of the impending birth of her baby and her future financial needs.

Lost Income

With respect to this head of damages, the Tribunal awarded Ms. Long $6,084.00 to put her back into the position she would have been in had the discriminatory acts not occurred. This was the amount she would have earned, had she been permitted light duties; had she been permitted to work her usual hours while pregnant; and had she had not been improperly suspended.

Interestingly, the Tribunal also accepted Ms. Long's request that she be awarded an additional amount for loss EI maternity/parental benefits as a result of having less insurable hours.

PROCEDURAL RULINGS

Sarah Rogers v. Holcim (Canada) Inc.

In this case, the Applicant alleged discrimination in employment on the grounds of sex and pregnancy. The respondent had requested that the Application be deferred pending the outcome of a reconsideration of an Ontario Ministry of Labour order made pursuant to the Ontario Employment Standards Act.

Since the decision dealt with the same subject matter as the proposed proceeding before the Tribunal, namely whether the employer had acted improperly in contravening the pregnancy leave provisions of the Employment Standards Act, for which reinstatement could be ordered, the Respondent's request was granted.

Davis v. Sarnia Golf Club

In this case, the Applicant filed an application alleging discrimination, but the last incident of discrimination described in the application had occurred more than one year before the filing of the application.

Section 34 of the Code provides that:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

As a result, the Tribunal sent a notice advising the Applicant that the application appeared to fall outside of its jurisdiction and requesting written submissions addressing the issue within five weeks. The Applicant did not respond to the Tribunal's Notice so his application was dismissed as abandoned.

- Robert Tanha , Toronto

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Ontario Employment Law: Reasonable Notice and 'Character of Employment'

Ontario employers are legally required to provide reasonable notice of termination when terminating employment without cause.

Often, employers fail to do so.

It should come as no surprise, therefore, that an overwhelming majority of employment law cases deal with the issue of reasonable notice.

The legal remedy for an employer's failure to provide reasonable notice is an award of damages, based on the compensation that would have been paid to the employee during the period of notice which should have been provided.

How is this period of reasonable notice determined?

In the leading Ontario case of Bardal v. Globe and Mail Ltd., decided in 1960, it was noted that what constitutes reasonable notice will differ depending on the circumstances of any particular case.

There, the court identified a non-exhaustive list of factors relevant to the assessment of reasonable notice: the character of employment (are you a manager or a non-manager?); the age of the employee and the availability of similar employment; and the length of service of the employee.

McRuer, C.J.H.C. articulated what have come to be known as the Bardal factors, as follows:

There can be no catalogue laid down as to what was reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

Without question, of these factors, the duration of service of the employee is typically the most significant.

Nevertheless, the character of employment has also been an important consideration with respect to assessments of notice periods, with most courts in the past essentially giving management employees (those with higher levels of responsibility) a lengthier notice period than non-management employees.

This has traditionally been rationalized on the basis that it takes a longer period of time for managers to secure alternate employment than non-management employees.

Courts have reached this conclusion by presuming that there are fewer employment opportunities available for management employees seeking comparable positions as compared with non-management employees because their skills are more specialized and hence relevant to a narrower range of employers, often without undertaking an analysis into whether this is in fact the case.

In Panimondo v. Shorewood Packaging Corporation, a 2009 decision of the Ontario Superior Court, Mr. Justice Strathy notes at at paragraph 33:

With respect to the factor of character of employment, there appears to be a presumption that employees with more senior positions in an organization, such as those with management responsibilities, require a longer notice period than those with lower levels of responsibility. It is presumed that there are fewer employment opportunities available for those whose specialized knowledge and skills demand higher managerial positions with comparable salaries and benefits:Minott v. O’Shanter Development Company Ltd. 1999 CanLII 3686 (ON C.A.), (1999), 42 O.R. (3d) 321, 40 C.C.E.L. (2d) 1 (C.A.); Cronk v. Canadian General Insurance Company 1995 CanLII 814 (ON C.A.), (1995), 25 O.R. (3d) 505, 14 C.C.E.L. (2d) 1 (C.A.).

In a 1995 decision of the Ontario Court of Appeal, Cronk v. Canada General Insurance Corp., Weiler J., in dissent, essentially rejected this presumption, arguing that there may be more compelling reasons to reach the opposite conclusion - that clerical workers as opposed to senior managers probably experience more difficulty in securing employment.

She cites a number of reasons for this, not least of which is that while there may be fewer job vacancies for senior managers, they are often in a much better position to secure re-employment because of their education, training, and contacts.

The majority of the Ontario Court of Appeal differed, however, and continued the traditional approach, holding that the clerical nature of Mrs. Cronk's work did not entitle her to any extended period of notice.

Currently, Ontario law holds that managers typically remain entitled to longer periods of notice than non-managers. The character of the employee's work is still an important factor to be considered.

This may continue to be a topic of ongoing debate, however.

What is more, this traditional analysis may see increasing challenge in our current economy, where many employees cannot be neatly classified as managers or non-managers, and where online employment recruitment continues to revolutionize the job search process.

- Robert Tanha, Toronto

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