Court of Appeal for Ontario

Date: 2021-10-26 Docket: C68548

Before: Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. (ad hoc)

Between: David Kerner, Plaintiff (Respondent) and Information Builders (Canada) Inc., Defendant (Appellant)

Counsel: Hendrik Nieuwland, for the appellant Philip R. White and Jason Wong, for the respondent

Heard: October 18, 2021 by video conference

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated July 16, 2020, with reasons reported at 2020 ONSC 2975.

Reasons for Decision

[1] The sole issue on this appeal is whether the trial judge erred in awarding damages for wrongful dismissal based on a reasonable notice period of eight months.

[2] The trial judge’s assessment of reasonable notice is entitled to deference and should not be disturbed unless it is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, we may substitute our own figure, but we should do so sparingly if the trial judge’s award is within an acceptable range, despite the error in principle: Holland v. Hostopia.Com Inc., 2015 ONCA 762, at para. 44.

[3] The appellant submits that the trial judge made two errors in principle. First, she erred by having regard to the respondent’s prior service with the employer. That service (16 ½ years) ended when the respondent voluntarily resigned in 2013 to take up other employment. When the latter employment ended, the respondent was unemployed for about a year before returning to work with the appellant in January 2017. He was dismissed without reasonable notice in September 2018.

[4] Second, the appellant submits that the trial judge erred by having regard to the time it took the respondent to find new employment after his termination.

[5] Assuming these were errors in principle, we conclude that a notice period of eight months for this employee in these circumstances was reasonable.

[6] The trial judge had regard to the Bardal principles. She adverted to the respondent’s age (56), the fact that his work experience was almost entirely in the IT/Enterprise sector, his recent employment with the appellant as Regional Sales Manager in New York, and his relatively high compensation package of approximately $300,000 per year. The trial judge could also have considered the fact (which she mentioned in her reasons) that before returning to the appellant’s employ in 2017, it had taken the respondent almost a year to find employment with the appellant after being terminated by his previous employer. This was a relevant indicator of the time it would reasonably take the respondent to find comparable employment.

[7] Having considered the cases referred to by both parties, we are not satisfied that eight months was outside an acceptable range in the circumstances of this case. To state the obvious, the cases turn on their own facts. That said, the cases mentioned in the appellant’s factum are from jurisdictions other than Ontario and decisions involving other marketplaces must be viewed with some caution. The cases identified by the respondent, which include authorities from Ontario as well as other provinces, indicate that some senior managers in their fifties, drawing salaries lower than the respondent’s, with less than three years of service, have been awarded notice in the range of 6 to 12 months.

[8] The appeal is dismissed with costs to the respondent in the agreed amount of $9,000, inclusive of disbursements and all applicable taxes.

“G.R. Strathy C.J.O.”

“B. Zarnett J.A.”

“Wilton-Siegel J.”