COURT FILE NO.: 210/02

DATE: 20030916

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MCRAE, THEN AND FERRIER JJ.

B E T W E E N:

ANNE HAIRE

Plaintiff (Respondent)

• and -

CURTIS INTERNATIONAL LTD.

Defendant (Appellant)

Marvin A. Gorodensky, for the Plaintiff (Respondent)

Tracy A. Kay, for the Defendant (Appellant)

HEARD: September 16, 2003

McRAE J.: (Orally)

1There are three issues in this appeal: (i) the length of the notice of termination (ii) the additional two months notice awarded because of bad faith on the part of the employer and (iii) the awarding of costs on a substantial indemnity basis against the appellant.

2The employee, a 47 year old single mother was terminated January 3rd, 2001 with two weeks working notice during which she was required to train her replacement. She was also told she was free to seek other employment during this period.

3Counsel agrees that the length of notice is not a science but remains a judgment call by the trial judge based on all of the evidence. The appellant submits that a term of two months would have been a more appropriate notice period. We would not interfere with the trial Judge’s finding in this regard, three months is within a reasonable range and is not clearly wrong.

4The basis for the finding of bad faith is in the manner of the respondent’s termination and the surrounding circumstances. Without advising the respondent the appellant decided sometime prior to January, 2001 to terminate her employment. On January 2nd, 2001, her replacement began working for the appellant. Unfortunately the respondent had not been notified in writing or otherwise and did not attend the office on that day due to illness. She arrived for work on January 3rd, 2001 to find her replacement already there. As a result, she was the last person in the small office to discover that she had been fired. The appellant gave her two weeks verbal notice and required that she remain to train her replacement during the notice period. She was understandably upset, the employer said that he understood and that she might not wish to exercise that option, that she should go home and think about it. The following day she telephoned the employer and told him that she didn’t think should could deal with the humiliation. At that point she was told if she did not accept the company’s terms, they would report her as having resigned and that she would not receive employment insurance. This evidence was accepted by the trial Judge. She therefore had no realistic choice in these circumstances but to return to work as she did. The trial Judge characterized the conduct of the company as acting in bad faith, characterized by its insensitivity.

5In our view this conduct is encompassed by the Supreme Court in Wallace in these words by Justice Iacobucci:

“The obligation of good faith and fair dealing is incapable of precise definition. However, at a minimum, I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.”

6We are unable to find that the trial Judge erred in finding bad faith on the part of the employer and thereby increasing the notice period by an additional two months.

7The appeal book will read as follows: “Dismissed for oral reasons. With respect to costs, in view of the offer to settle dated February 4, 2002, the quantum of costs was not unreasonable. Cost on the appeal to the respondent fixed at $4,000.”

MCRAE J.

THEN J.

FERRIER J.

Date of Reasons for Judgment: September 16, 2003

Date of Release: September 18, 2003

COURT FILE NO.: 210/02

DATE: 20030916

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT