Court of Appeal for Ontario

Citation: Bennett v. Sears Canada Inc., 2012 ONCA 344 Date: 20120524 Docket: C54792

Before: O’Connor A.C.J.O., Feldman and Ducharme JJ.A.

Between

Audrey Darlene Bennett Applicant (Respondent in appeal)

and

Sears Canada Inc. Respondent (Appellant)

Counsel: William M. LeMay and Lisa M. Kwasek, for the appellant (Sears Canada Inc.) Peter K. Hrastovec, for the respondent

Heard and released orally: May 18, 2012

On appeal from the judgment of Justice Richard C. Gates of the Superior Court of Justice, dated November 30, 2011.

ENDORSEMENT

[1] The appellant Sears Canada Inc. offers some of its employees post-retirement health and welfare benefits upon their retirement. However, to qualify for these benefits the employee must meet certain eligibility requirements. One of these requirements is that the employee "must retire from active employment with 20 years or more continuous full-time service."

[2] The issue in this case is whether the respondent Audrey Darlene Bennett qualifies for or is otherwise entitled to the post-retirement benefits arising from her long-term employment relationship with Sears.

[3] Ms. Bennett began working at Sears as a part-time employee on October 17, 1977. On May 16, 1999, she became a full-time employee. On February 19, 2009, the company informed Ms. Bennett in writing that her employment would be terminated, effective April 16, 2009, due to corporate restructuring.

[4] Thus, during the nearly 32 years that Ms. Bennett was employed with Sears, she worked in a part-time capacity for approximately the first 22 years and in a full-time capacity for about the last 10 years.

[5] In June 2005, Ms. Bennett inquired of an employee in the Human Resources Department at the Windsor store where she worked about her eligibility for pension-related retiree benefits. That employee then conveyed Ms. Bennett's request to another employee in the HR Service Centre in Toronto, the company’s head office.

[6] The response from the Head Office was in the form of an e-mail dated June 7, 2005, and was as follows:

She would need 20+ to get Group Life/Health & Dental/Discount Card At the moment 28 years of service but due to her going from part-time to full-time this is combined and her total years service 17.153 years which means she would need to retire(e) [sic] in about three years to qualify for the benefits.

[7] Based upon this statement, Ms. Bennett would have qualified for full retirement benefits in or about 2008. In fact, as we have noted, she worked beyond that date until she was terminated effective April 16, 2009.

[8] After she received her Notice of Termination, Ms. Bennett met with a representative of the company's Human Resources Department. This time it was the HR Director for Ontario West. Ms. Bennett again raised the issue of her eligibility for post-retirement benefits and was assured that she would receive full retirement benefits.

[9] However, after her employment came to an end, Ms. Bennett learned from yet another company representative that she did not qualify for any post-retirement benefits because she did not meet all the eligibility requirements, specifically the condition that the employee "must retire from active employment with 20 years or more continuous full-time service." The company representative informed Ms. Bennett that the information she received in July 2005 confirming her entitlement was an error, and that her entitlement was only to vacation, not to the medical and health benefits provided to those full-time employees who met the eligibility criteria.

[10] Ms. Bennett then initiated an Application which issued on September 14, 2010. In it, she asked for a determination of her rights to the post-retirement health benefits and for a declaration that she was entitled to those benefits. The Application was heard on November 21, 2011.

[11] The Application Judge was alive to the fact that the dispute between the parties was contractual in nature. In paragraph 33 of his Endorsement he wrote as follows:

In the case at hand however the plaintiff says that agreement reached in the formative discussion stages between the plaintiff and the HR office at Sears was plainly that commutation of her part-time services would entitle her to full pension benefits, upon her working for an additional approximate three years, which she did.

[12] There was evidence to support the Application Judge's conclusion that Ms. Bennett had reached an agreement with the company, based upon her own affidavit evidence and the information contained in the e-mail of June 7, 2005.

[13] Having properly considered the dispute between the parties to be contractual in nature, the Application Judge did not err in concluding that Ms. Bennett was entitled to have the contract performed. We would not interfere with the award fashioned by the Application Judge in paragraph 38 of his Endorsement.

[14] Accordingly, the appeal is dismissed. The parties have agreed on the quantum of the costs payable by the appellant. The respondent shall have her costs in the all-inclusive sum of $15,000.00.

“D. O’Connor A.C.J.O.”

“K. Feldman J.A.”

“E. Ducharme J.A.”