Court of Appeal for Ontario
Date: 2019-07-19 Docket: C65872
Judges: Lauwers, Benotto and Brown JJ.A.
Between
Elisabeth English Plaintiff (Appellant)
and
Manulife Financial Corporation Defendant (Respondent)
Counsel
Arthur Zeilikman, for the appellant
Gordon Jermane, for the respondent
Heard: March 25, 2019
On appeal from the order of Justice Mark L. Edwards of the Superior Court of Justice, dated August 31, 2018.
Decision
Benotto J.A.:
Introduction
[1] Elisabeth English had been working as a Senior Customer Relationship Manager for Standard Life Insurance ("Standard Life") for nine years when it was acquired by Manulife Financial Corporation ("Manulife").
[2] Manulife announced the implementation of a new computer system. Upon learning this news, the appellant, who was then in her early 60s, contemplated early retirement to eliminate the need to train on a new system near the end of her career. She gave her supervisor a letter indicating that she would retire at the end of the year. He said that she could change her mind. A few weeks later, Manulife announced that it was no longer converting to the new computer system, so the appellant decided to stay. Manulife took the position that she had retired. The appellant sued for wrongful dismissal.
[3] The appellant's action was dismissed following a motion for summary judgment. The motion judge held that, if he was wrong in finding that the appellant was not wrongfully dismissed, the appropriate notice period would be 12 months.
[4] I would allow the appeal and grant judgment to the appellant for 12 months' salary in lieu of notice.
Facts
[5] Ms. English began working for Standard Life in 2006. Her job was to provide services to pension clients. In July 2015, Standard Life was acquired by Manulife. At that time the appellant was a Senior Customer Relationship Manager earning approximately $128,000. She was 64 years old.
[6] Shortly after the acquisition, Manulife announced that it would be converting to a new computer system. This led Ms. English, then close to retirement age, to consider retiring early. She was concerned about her ability to learn a new system, and about the cost to Manulife of retraining an employee so close to retirement. She met with her supervisor, Clive Ramnath, on September 22, 2016, and told him that as a result of the new system, she would retire early. He asked her if she was sure and she said, "not totally".
[7] She handed him a retirement letter she had typed herself:
Dear Clive,
This will serve formal notice that I will be retiring effective December 31, 2016.
I have enjoyed working at Standard Life/Manulife for the past 10 years very much, and want to thank you very much for all your support during my tenure.
I especially want to express my gratitude for all your support and understanding during my very difficult times in 2012 and again in 2015.
I will entertain a part-time position, two or three days per week, should be possible (sic), but I understand if it is not.
Again thank you so much for everything.
Sincerely,
Elisabeth English
[8] In examination for discovery, the appellant deposed that Mr. Ramnath told her that if she changed her mind, she could rescind the notice of retirement. In an affidavit filed in support of the summary judgment motion, Mr. Ramnath said he did not say that she could rescind the Notice of Retirement. However, when later examined for discovery, he admitted that he had offered Ms. English an opportunity to reconsider and to rescind the resignation. The exchange is as follows:
[Q]: Just to go back to your meeting with Elisabeth when she tendered her notice of resignation to you, September 22, you told her that she could rescind her notice of resignation if she changed her mind?
A: I asked her if she was sure at that point in time.
[Q]: Did you tell her that, 'If you change your mind, you can rescind it or reconsider it'?
A: At that point in time, yes.
[Q]: September 22nd?
[9] Shortly thereafter Mr. Ramnath announced Ms. English's impending retirement at a staff meeting with her consent.
[10] Less than three weeks later, on October 11, 2016, Manulife announced that it would not be proceeding with the computer conversion. The next day Ms. English spoke to Mr. Ramnath. She told him that because Manulife was not proceeding with the computer conversion, she was withdrawing her notice. He did not say there was any difficulty with this, but simply acknowledged the withdrawal of her notice. The appellant continued working and took her planned one week vacation on November 4, 2016.
[11] Mr. Ramnath advised the human resources department at Manulife about Ms. English's rescission of her retirement notice and asked for instructions. The response did not come for about a month.
[12] On November 25, 2016, Mr. Ramnath advised Ms. English by telephone that Manulife would not recognize a rescission of the notice.
[13] Ms. English immediately responded by letter, and stated:
Dear Clive,
Re: My pending retirement
Our telephone conversation earlier today caught me totally by surprise when you indicated that Manulife was honouring my request to retire 31/12/2016.
You will recall that when I handed my notice to you in September, you asked me whether I was sure to which I answered not totally. "You then told me that I can always rescind it if I changed my mind."
My primary reason for considering 2016 rather tha[n] 2017 was being informed by Manulife that they intended to convert our clients and retrain us on Manulife's computer systems. With conversion of systems having been announced to us as Manulife's plan, I saw no benefit to either Manulife or me to get trained on a whole new system given that my retirement was imminent.
Upon subsequent reflection and having gone through numerous client conversions and staff retrainings in my career, I considered I would save Manulife and myself the time and effort to train me only to have me retire at the end of 2017.
Following the announcement of October 11 th regarding the halt of conversion, I reconsidered my situation and decided to rescind my notice, as you offered.
I came to you on October 12 th and asked whether you had done anything with my letter to which you responded, no, and I then told you that given that we're not proceeding with conversion, I will continue with my original plan to retire at the end of 2017. You did not indicate in any way that this would be a problem. Therefore, I have been, for the past six weeks, under the assumption that everything was OK.
Now, subsequent to my return from vacation, suddenly on November 25 th all has changed and I don't understand.
It is still my plan to work to the end of 2017.
[14] On December 1, 2016 Mr. Ramnath emailed her to say that Manulife was "honouring" her retirement notice. On December 12, 2016 she was told not to come back to work.
Decision Below
[15] The appellant commenced an action for wrongful dismissal against Manulife. The parties, through their counsel agreed that a summary judgment motion would be the appropriate way to resolve the action.
[16] The motion judge defined the issue as follows:
The Plaintiff's motion raises the legal question of whether an employee who has resigned her position of employment by way of a notice of retirement may later rescind her written notice of retirement.
[17] By framing the issue in this way, the motion judge embarked upon an analysis of two divergent lines of jurisprudence dealing with the ability of an employee to rescind a notice of resignation. He concluded that the appellant's notice of retirement was accepted by Manulife and Manulife did not need to show that it had relied on the notice to its detriment. On this basis, the motion judge held that the appellant had in fact resigned, and therefore had not been wrongfully dismissed.
[18] He also determined, for purposes of appeal, that the appellant would be entitled to 12 months' pay in lieu of notice if she was wrongfully dismissed.
Issue
[19] I see the issue differently from the motion judge. In my view the threshold question concerns the legal effect of the events of September 22, 2016.
Analysis
[20] The motion judge concluded that the appellant's September 22, 2016 letter constituted a "clear and unequivocal" resignation.
[21] As I will explain, this was an error. Her resignation notice was equivocal given the circumstances in which she presented it to Manulife, and she was entitled to withdraw it.
[22] When the appellant gave Mr. Ramnath her retirement letter, she told him that she was not entirely sure she wanted to retire. The impetus for her letter was the computer conversion. She was told by Mr. Ramnath that she could change her mind. Mr. Ramnath admitted this under oath. Within three weeks the computer conversion was cancelled. The day after the cancellation was announced, the appellant told Mr. Ramnath that she had changed her mind. He did not indicate that there was a problem with this.
[23] These facts do not support a clear and unequivocal resignation. On the contrary, they demonstrate that the appellant was equivocal when giving her resignation notice, and that her equivocation was condoned by Manulife through the actions of Mr. Ramnath.
[24] When Manulife cancelled the computer conversion within three weeks of her September 22, 2016 conversation with Mr. Ramnath, the basis for the appellant's resignation disappeared. The appellant moved promptly to tell him that, as discussed, she was not going to retire. Mr. Ramnath acknowledged her decision and did not tell her it was a problem.
[25] Manulife is bound by Mr. Ramnath's promise to the appellant that she could change her mind. She did so within three weeks and her change of mind was not challenged.
[26] Since the appellant did not in fact resign, her termination on December 12, 2016 was a wrongful dismissal.
[27] The matter was appropriately determined by summary judgment at first instance and may be disposed of on appeal without an oral hearing. I say this for four reasons.
[28] First, the facts are not complicated. In light of Mr. Ramnath's admission in examination for discovery about what he said to the appellant on September 22, 2016, I do not see a credibility issue that must be determined.
[29] Second, the parties agreed that summary judgment was appropriate. In that regard, this court is in the same position as was the motion judge to decide the case on its merits, as no viva voce evidence was received.
[30] Third, wrongful dismissal claims are usually well-suited for disposition by way of summary judgment. As this court said in Arnone v. Best Theratronics Ltd., 2015 ONCA 63, 329 O.A.C. 284, at para. 12:
a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion.
[31] Fourth, there is the issue of proportionality. The amount in issue, while significant for the appellant, must to a certain extent, impact the choice of process. See the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 1.04(1.1):
In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. [Emphasis added.]
[32] The motion judge determined that for purposes of appeal, he would fix the damages at 12 months' salary in lieu of notice. I would accept that determination.
Conclusion
[33] I would allow the appeal and award damages in accordance with the motion judge's assessment.
[34] In light of my conclusion, it is unnecessary to address the issue of whether and in what circumstances an unequivocal notice of resignation may be rescinded by an employee.
[35] Neither party sought costs, and none are awarded.
Released: July 19, 2019
"M.L. Benotto J.A."
"I agree. P. Lauwers J.A."
"I agree. David Brown J.A."