



COURT OF APPEAL FOR ONTARIO

CITATION: Kerner v. Information Builders (Canada) Inc., 2021
    ONCA 756

DATE: 20211026

DOCKET: C68548

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)

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 judges 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
    judges 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 respondents 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 respondents 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 appellants 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 appellants 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 respondents,
    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.


