COURT OF APPEAL FOR ONTARIO
RE: ANN RESHNYK (Plaintiff/Respondent) –and– GRENVILLE MANAGEMENT SERVICES LTD. (Defendant/Appellant)
BEFORE: CATZMAN, WEILER and ARMSTRONG JJ.A.
COUNSEL: Kevin T. Fox, for the appellant
Robert J. Reynolds, for the respondent
HEARD: October 17, 2002
On appeal from the judgment of Justice Richard G. Byers of the Superior Court of Justice dated October 24, 2001.
E N D O R S E M E N T
1[1] Following trial on an agreed statement of facts, Byers J. found that the plaintiff’s employment by the defendant had been terminated without cause and awarded her damages for wrongful dismissal. This is an appeal by the defendant from that judgment.
2[2] Byers J. held that the two options offered to employees of Loyalist College in 1998 were implied terms in the contract of employment between the plaintiff (respondent) and the defendant (appellant). The two options were to:
- Elect to stay at Loyalist, and exercise whatever rights they might have under the Collective Agreement between the College and OPSEU with respect to bumping etc. (“Option 1”); or
- Take a one year leave of absence from Loyalist, and go to work for the [appellant] on the same terms and conditions of employment as prevailed at Loyalist College, including seniority. Such employees would retain the right to return to Loyalist College at the end of the one-year leave of absence and proceed as under Option 1. (“Option 2”).
3[3] Byers J.’s finding that the two options were implied terms was not challenged by the appellant and was not the subject of any cross-appeal by the respondent, and we are of the view that the appeal should be determined on the assumption that that finding was correct.
4[4] It is common ground that the respondent did not “return to Loyalist” in any physical sense after September 1999. The issue dispositive of this appeal is whether she did so in a legal sense within the contemplation of Option 2.
5[5] We accept as accurate the appellant’s characterization of the two options as permitting affected employees to choose which of two jobs they wanted, and to give them a year to make an informed decision. We do not, however, accept its further submission that, rather than choosing between two jobs, the respondent managed to get two paying employers out of her trial period. Rather, we agree with the respondent that the college, in 1999, bargained with her as an employee on leave of absence with an existing pension entitlement, which was an entirely sufficient basis for the negotiations that led to the agreement between her and the college in September of that year. She did not have to “return to Loyalist College” to qualify for the leave of absence and enhanced pension that resulted from those negotiations (the “early retirement proposal”).
6[6] Although we do not agree with Byers J.’s interpretation of the expression “return to Loyalist College” as requiring return “as a full-time employee”, we do not see the necessity of such an interpretation in affirming the conclusion that he reached. As indicated above, the early retirement proposal put forward by the college and accepted by the respondent neither contemplated nor resulted in her return to a job with the college, and did not engage the “right to return” specified in Option 2.
7[7] Accordingly, the appeal is dismissed with costs, in such amount as counsel may agree or, if they cannot agree, in an amount to be fixed following receipt of written submissions from counsel in the usual manner.
Signed: “M. A. Catzman J.A.”
“K. M. Weiler J.A.”
“Robert P. Armstrong J.A.”