DATE: 20030414
DOCKET: C37264
COURT OF APPEAL FOR ONTARIO
ROSENBERG, MACPHERSON and SIMMONS JJ.A.
B E T W E E N :
AUDREY DEBENHAM
Douglas D. Langley, Esq. for the appellant
Appellant
- and -
CSI‑MAXIMUS
James T. Beamish for the respondent
Respondent
Heard: April 10, 2003
On appeal from the order of Justice Frank K. Roberts of the Superior Court of Justice dated October 18, 2001.
BY THE COURT:
[1] Following a two day trial, Roberts J. rendered a judgment in favour of Audrey Debenham in a wrongful dismissal action. He determined that the proper notice period for Ms. Debenham, a twenty‑six year employee with the appellant and its predecessor companies, was fifteen months. He awarded damages of $63,029.80 plus pre‑judgment interest and costs.
[2] The appellant, CSI‑Maximus, appeals from the trial judgment on three bases. The respondent, Ms. Debenham, cross‑appeals on one ground.
A. CSI‑Maximus’ appeal
[3] The appellant contends that the trial judge erred by concluding that Debenham was an employee rather than an independent contractor. The appellant submits that the trial judge ignored the “organization/integration” test for determining whether Debenham’s status from 1994 to her dismissal in 2000 was that of an employee or an independent contractor: see 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001), 2001 SCC 59, 11 C.C.E.L. (3d) 1 (S.C.C.); and Mayer v. J. Conrad Lavigne Ltd. (1979), 27 O.R. (2d) (C.A.).
[4] We disagree. Although the trial judge did rely on the intentions of both the new owner and Debenham in 1994 (to continue the twenty year relationship, but with an alteration, for administrative reasons only, to the method of paying Debenham), he also reviewed and relied on many objective factors which strongly supported Debenham’s position that her status as an employee never changed during her twenty‑six years with the various owners for whom she worked.
[5] The appellant contends that the trial judge erred by not holding that the release signed by Debenham when the appellant purchased the company related to all aspects of her employment relationship, not just to the issue of unpaid back salary.
[6] We disagree. Although the trial judge did not consider this issue in his reasons, it is clear that the subject matter of the release was the payment of the back salary she was owed.
[7] The appellant submits that the trial judge erred in failing to consider the two prior asset sales, one of which was an insolvency sale, in determining the relevant length of service for the notice period. The appellant contends that one or both of these sales constituted a clean break which, in effect, severed the employment relationship.
[8] We disagree. The trial judge relied on the reasons of Sachs J. in Kamen v. Rose, [2001] O.J. 291 at para. 22 (S.C.):
There are a number of cases involving businesses that have been sold or reorganized, in which the courts have decided that an employee who retains his or her employment following such a sale or reorganization is entitled to rely on his or her employment history with the previous, as well as the current owner, in the calculation of reasonable notice upon termination. These cases further hold that this will be the presumption unless there is an express agreement to the contrary.
We agree with this statement of the law and with the trial judge’s conclusion that, on the record before him, “the plaintiff's history of employment from 1974 to the date of termination in March, 2000 should be the basis for the calculation of reasonable notice.”
B. Ms. Debenham’s cross‑appeal
[9] The respondent contends that the fifteen month notice period determined by the trial judge is outside the range for an employee in her situation.
[10] It is true that an appellate court can intervene if the notice period set by a trial judge is outside an acceptable range. However, the decision of a trial judge on this issue is entitled to considerable deference: see Minott v. O’Shanter Development Co. (1998), 1999 3686 (ON CA), 40 C.C.E.L. (2d) 1 (Ont. C.A.).
[11] The respondent cites no case where an employee similarly situated to her has been awarded damages flowing from a notice period of twenty‑one to twenty‑four months, which is the range that she asserts is appropriate. We can see no basis for interfering with the trial judge’s analysis or conclusion on this issue.
Disposition
[12] The appeal is dismissed, with costs fixed at $7500 inclusive of disbursements and GST.
[13] The cross‑appeal is dismissed, with costs fixed at $2000 inclusive of disbursements and GST.
RELEASED: April 14, 2003 (“MR”)
“M. Rosenberg J.A.”
“J. C. MacPherson J.A.”
“Janet Simmons J.A.”