Court of Appeal for Ontario
Date: 20220314 Docket: C69279
Before: Pepall, Brown and Thorburn JJ.A.
Between:
Diane Currie Plaintiff (Respondent)
and
Nylene Canada Inc. Defendant (Appellant)
Counsel: Caroline Richard and Travis Ujjainwalla, for the appellant Melynda Layton and Ken Krupat, for the respondent
Heard: February 3, 2022 by video conference
On appeal from the judgment of Justice Marc E. Smith of the Superior Court of Justice, dated March 16, 2021, with reasons reported at 2021 ONSC 1922, 71 C.C.E.L. (4th) 82.
Reasons for Decision
Overview
[1] Ms. Currie brought an action for damages for wrongful dismissal and other relief after the termination of her employment with the appellant, Nylene Canada Inc. The trial judge awarded her damages based on a period of reasonable notice of 26 months.
[2] Nylene appeals the damage award to Ms. Currie on two grounds:
(i) The trial judge erred by using the period from 1979 until 2018 as the basis for determining the period of reasonable notice. Nylene contends that Ms. Currie’s years of service for the purpose of assessing the reasonable notice period ran only from June 2017, when she retired from and then was rehired by Nylene, until December 2018; and
(ii) The trial judge erred in law by exceeding a maximum reasonable notice period of 24 months as there is no basis in this case to justify a longer notice period.
[3] Nylene submits that Ms. Currie’s retirement in June 2017 constituted a break in service of her employment such that her immediate re-hiring through the June Employment Letter re-set her years of service clock back to zero.
[4] We disagree. First, as the trial judge said, “Ms. Currie was not prepared to stop working. She signed the documents prepared by Nylene for the sole purpose of accessing her Pension Plan and on the assurance that her employment would remain the same.” Second, Ms. Currie “relied upon the representations made to her that her employment conditions would remain the same, which meant that her status as a long-standing employee and that her tenure would not be affected by her signing a new employment agreement.”
[5] In his reasons, the trial judge carefully articulated the evidence in support of those findings. Specifically, he found that:
i. Ms. Currie’s employment record chronicled important dates from her hiring to her termination but there was nothing on the alleged retirement;
ii. Ms. Currie did not provide Nylene with any written notice of resignation or retirement;
iii. Ms. Currie testified that she was told that if she accessed her pension, nothing was going to change in her employment and everything would remain the same. A fair reading of the two June 9, 2017 documents certainly supports that understanding;
iv. Ms. Currie testified that she relied upon the company’s representation that everything would remain the same when she signed the June Employment Letter; and
v. As well, she testified that she was not prepared to stop working but opted to sign the documents prepared by Nylene only after her employer approached her and informed her about her entitlement under the BASF Pension Plan.
[6] The trial judge accepted Ms. Currie’s testimony on these points, as he was entitled to do.
[7] Given his findings of fact, it was open to the trial judge to conclude that the retirement/re-hiring process proposed by Nylene in June 2017, to which Ms. Currie agreed, was for the limited purpose of enabling her to access her BASF Pension Plan and did not affect her years of service with Nylene for the purpose of determining the reasonable notice period.
[8] As such we find no palpable and overriding error and this ground of appeal fails.
[9] Second, we disagree that the trial judge erred in awarding a 26-month notice period given Ms. Currie’s “unique situation”.
[10] Both parties asserted that Ms. Currie was entitled to reasonable notice but disagreed as to what that period would be. Nylene suggested it was 15 months and Ms. Currie took the position that it was 26 months’ notice.
[11] The trial judge articulated in detail the factors he considered in arriving at the conclusion that 26 months’ notice was warranted. Those factors include the fact that:
(i) Ms. Currie left high school to start work (at age 18) as a twisting operator at Nylene and worked there for her entire career, ultimately rising to become the Chief Operator reporting to the Shift Leader;
(ii) After working at Nylene for 40 years, her employment was terminated by Nylene near the end of her career, when she was 58 years old;
(iii) Ms. Currie had very specialized skills making it very difficult for her to find alternative suitable employment. Moreover, at the time of her termination, her computer skills were limited. She made diligent efforts to attempt to gain basic computer skills and mitigate her damages but the trial judge was not convinced she would succeed in securing alternative employment;
(iv) The work landscape had evolved significantly since Ms. Currie had entered the workforce in 1979 and, as her experience was limited to working for Nylene and its predecessors in one manufacturing environment, her skills were not easily transferable; and
(v) Given Ms. Currie’s age, limited education and skills set, the termination “was equivalent to a forced retirement.”
[12] The trial judge firmly anchored his reasonable notice analysis in the factors identified in Bardal v. The Globe and Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.). As well, he acknowledged that the decisions of this court in Lowndes v. Summit Ford Sales Ltd. (2006), 206 O.A.C. 55 (C.A.) and Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, 435 D.L.R. (4th) 573 state that exceptional circumstances should exist to support a notice period that exceeds 24 months.
[13] These grounds provide ample support for the trial judge’s award of damages in lieu of reasonable notice.
[14] For these reasons, the appeal is dismissed.
[15] If the parties are unable to agree on costs, they may submit brief written submissions on costs of no more than two pages.
“S.E. Pepall J.A.”
“David Brown J.A.”
“J.A. Thorburn J.A.”
