



COURT
    OF APPEAL FOR ONTARIO

CITATION: Nagpal v. IBM Canada Ltd., 2021
    ONCA 274

DATE: 20210430

DOCKET: C67398

Doherty, Pepall and Thorburn
    JJ.A.

BETWEEN

Vinay Nagpal

Plaintiff

(Respondent)

and

IBM
    Canada Ltd.

Defendant

(Appellant)

Jennifer Dolman and Aislinn Reid, for
    the appellant

IBM Canada Ltd.

Michael N. Freeman, for the respondent Vinay
    Nagpal

Heard: February 16, 2021 by videoconference

On appeal from
    the judgment of Justice Paul B. Schabas of the Superior Court of Justice, dated
    July 30, 2019, with reasons reported at 2019 ONSC 4547, 2019 C.L.L.C. 210-065.

Thorburn J.A.:

A.

OVERVIEW

[1]

This is an appeal of an order dismissing IBM
    Canada Ltd.s (IBM) motion for summary judgment and granting summary judgment
    in favour of IBMs former employee, Vinay Nagpal.

[2]

In so doing, the motion judge held that IBM had
    not established that Mr. Nagpal had resigned, abandoned his position at IBM,
    or that his contract of employment was frustrated. These were the issues placed
    before the motion judge by IBM.

[3]

First, the motion judge held that, there was no
    clear and unequivocal resignation by Mr. Nagpal. Nor can it be said that Mr.
    Nagpals actions, viewed objectively by a reasonable person, clearly and unequivocally
    indicated an intention to no longer be bound by his employment contract with
    IBM. As such, the motion judge held that Mr. Nagpal did not resign or abandon
    his employment with IBM.

[4]

Second, the motion judge found that IBM could
    not rely on the doctrine of frustration as IBM had no basis to find that his
    illness was permanent, or even long-term at the time his employment ended.

[5]

Third, although he held it was not necessary for
    his decision, the motion judge was not satisfied that the Short-Term Disability
    (STD) Policy formed part of the employment contract which could be relied on
    by IBM to support its contention that Mr. Nagpal resigned.

[6]

On the motion, the parties had agreed that,
    should IBM be unsuccessful in establishing that Mr. Nagpal either resigned,
    abandoned his position, or that the contract was frustrated, it would follow
    that Mr. Nagpal had been wrongfully dismissed. Noting this concession, the
    motion judge granted Mr. Nagpal summary judgment for wrongful dismissal, with
    damages to be assessed.

[7]

On this appeal, IBM claims the motion judge:

1.

Made palpable and overriding errors by
    misapprehending evidence that Mr. Nagpal had resigned, abandoned his
    employment or that his contract of employment was frustrated;

2.

Erred in holding that the STD Policy was not
    part of Mr. Nagpals employment contract and that Mr. Nagpal was not estopped
    from denying that the STD Policy was enforceable; and,

3.

Erred in finding that IBM had a duty to further
    discuss Mr. Nagpals medical condition with him.

[8]

For the reasons that follow, I would dismiss the
    appeal.

B.

BACKGROUND

Mr. Nagpals employment history

[9]

Mr. Nagpal was employed by IBM for over two
    decades and spent fifteen years in leadership or management positions.

[10]

In 2011, he applied for and was granted a new
    leadership position. Shortly thereafter, he began experiencing stress and
    mental health problems. Mr. Nagpal attributed these difficulties to a
    challenging employee and he sought support from his supervisor, Rick Simpson. The
    motion judge found that, by March 2012, Mr. Simpson was aware of Mr.
    Nagpals stress and mental health challenges but took few steps to address them.
    By November 2012, Mr. Simpson was tracking Mr. Nagpals absences from work and,
    in January 2013, Mr. Simpson gave Mr. Nagpal a poor performance evaluation,
    the first he had received.

[11]

In March 2013, Mr. Nagpal called in sick. Mr.
    Nagpal advised IBM that his doctor recommended he take six weeks off and he
    commenced a leave of absence. He was referred to Manulife Financial Corp.
    (Manulife), which administers IBMs STD Policy.

The STD Policy

[12]

Under the STD Policy, qualified IBM employees with
    at least five years of service are provided 100% of their salary for the first
    26 weeks of disability leave. To qualify, an employee must have an illness or
    injury that prevents the employee from performing the essential duties of the
    occupation. Documentation must be provided to Manulife in support of the claim.

[13]

If short-term disability benefits are denied by
    Manulife, the employee may either return to work, appeal Manulifes decision
    and remain on an administrative unpaid leave of absence until the appeal is
    adjudicated by Manulife, or apply for long-term disability. The STD Policy also
    provides that:

If you have not taken any action in support of
    your appeal within one month of the commencement of the unpaid leave, IBM will
    consider that you have abandoned your appeal. In this instance
you will be
    expected to return to work immediately or will be presumed to have voluntarily
    resigned your employment with IBM
. [Emphasis added.]

[14]

While Manulife administers the STD Policy on
    behalf of IBM, the policy provides that IBM in its sole discretion shall
    decide who is properly entitled to STD benefits. It also provides that IBM reserves
    the right to modify, discontinue, suspend, or improve its disability policies
    and, further, that [n]othing contained in [the policy] shall be construed as
    creating an express or implied obligation on the part of IBM to maintain its
    disability policies.

Mr. Nagpals application for STD benefits

[15]

In May 2013, Mr. Nagpal was told he had to
    provide documentation to support his claim for short-term disability benefits
    to Manulife.

[16]

In June, Mr. Nagpals psychiatrist completed
    Manulifes short questionnaire confirming that he was being treated for
    depression and anxiety, among other things.

[17]

In early July, his psychologist completed
    Manulifes questionnaire, advising that Mr. Nagpal had poor stress coping,
    cognitive impairment, limited energy and tolerance and that the duration of
    this was unknown. She stated that return to work is premature and would
    likely exacerbate symptoms and stall recovery and was not recommended. Manulife
    acknowledged receipt of these materials, thanked Mr. Nagpal for his quick
    response, and told him that, [a]s the information is reviewed, we will
    follow-up with you.

[18]

Neither Mr. Nagpals psychiatrist nor
    psychologist provided their notes and reports to Manulife, as requested by the
    questionnaire. Manulife never followed up to request these additional
    materials, nor did Mr. Nagpal receive copies of the information his treating professionals
    sent to Manulife.

Manulifes response

[19]

On July 16, Manulifes medical consultant, Dr.
    Hines, reviewed Mr. Nagpals file. On the basis of the responses to
    questionnaires, he observed that there was some improvement in Mr. Nagpals
    condition. He acknowledged that Mr. Nagpal was on medication for
    depression and that there were workplace issues but stated that Mr. Nagpal should
    be able to receive treatment while working. He did not contact Mr. Nagpals
    doctors. The motion judge noted that it was difficult to reconcile Dr. Hines
    conclusion with the views of those treating Mr. Nagpal.

[20]

On July 19, Manulife told Mr. Nagpal that his benefits
    would be terminated based on the information received from his two physicians
    and Dr. Hines assessment. Mr. Nagpal was advised that he could appeal but that
    there would be no point in appealing unless he submitted information that has
    not already been reviewed.

[21]

On July 22, IBM, through Mr. Simpson, informed
    Mr. Nagpal that he could return to work or appeal Manulifes decision, and that
    he had until August 22, 2013 to provide the appropriate documentation required
    to support the appeal to Manulife, otherwise IBM would consider the appeal
    abandoned and you will be required to return to work or will be considered to
    have voluntarily resigned your employment.

The termination of Mr. Nagpals benefits and
    IBMs response

[22]

Mr. Nagpal did not commence an appeal and provided
    no new information to Manulife, although his benefits were to expire on July
    30. He contacted his doctors, who confirmed that Manulife had not requested any
    additional information and that they were unable to offer anything new to
    Manulife. Mr. Nagpal deposed that, at this point, he thought IBM was putting
    him between a rock and a hard place and that he saw no point in appealing, as
    Manulifes representative had told him there was nothing to be gained.

[23]

Instead, he engaged legal counsel, Mr. Freeman,
    who advised IBM by letter dated July 29 that:

1.

Mr. Nagpal 
cannot return to work
 (emphasis added);

2.

[T]here is no new information that would be brought
    forward in support of an appeal other than what was provided by Mr. Nagpals
    doctors on June 2 and July 2, 2013;

3.

The doctors would be pleased to provide updated
    information if required; and,

4.

Mr. Nagpal has no intention of resigning, nor
    will he be cajoled into doing so. He is, however, prepared to enter into
    negotiations that might lead to the development of an exit package whereby he
    would agree to leave IBM provided that he is reasonably compensated for doing
    so.

5.

He looked forward to the courtesy of your
    prompt reply.

[24]

Mr. Nagpals short-term disability benefits
    expired the following day.

[25]

No one at IBM responded to Mr. Nagpal counsels July
    29, 2013 letter until September 10, when IBM offered Mr. Nagpal three options:
    (1) a return-to-work meeting to discuss your barriers to returning to work;
    (2) communicate directly with IBM to address any workplace concerns; and/or
    (3) contact the confidential employee assistance provider for information about
    services such as Professional Counselling, Family Support, Nutrition and
    Health Coaching. He was told that if he did not engage any of these processes
    by September 27, 2013 we will consider you to have voluntarily resigned on
    September 27, 2013.

[26]

On September 19, his counsel responded, stating that
    Mr. Nagpals healthcare providers advise that he is not capable of returning
    to work even with some form of accommodation. [T]he only satisfactory
    resolution is that if Mr. Nagpals disability cannot be reinstated, his
    salary should continue to be paid to him. It appears the intent is to either
    starve Mr. Nagpal into settlement or force him to resign from his employment.
    Please rest assured that neither of these will happen.

[27]

Mr. Nagpals counsel received no response from
    IBM. On October 9, the company wrote to Mr. Nagpal stating that it considered him
    to have abandoned [his] employment with IBM Canada Limited. While there were
    further discussions with Mr. Nagpals counsel, IBM did not reinstate Mr. Nagpal
    as requested or provide him with an exit package.

[28]

In December 2013, Mr. Nagpal commenced an action
    against IBM alleging, among other things, wrongful or constructive dismissal. In
    May 2014, he also commenced an action against Manulife, alleging breach of
    contract, which was settled by payment of a lump sum of an undisclosed amount
    prior to the motion on appeal.

Mr. Nagpals ongoing health challenges

[29]

There is no dispute that Mr. Nagpal was unwell
    in 2013 and continued to have mental health challenges for several years
    following these events. The motion judge noted that, [i]n the litigation,
    additional medical information, in the form of notes and reports have been
    produced that may well have supported continuing STD, and providing [long-term
    disability], benefits.

[30]

The motion judge found that these documents were
    in the doctors possession but not Mr. Nagpals and, as noted above, that Mr.
    Nagpal was unaware of the contents of the documents submitted to Manulife.

C.

ANALYSIS OF THE Issues

1.

Did the motion judge make palpable and
    overriding errors of fact in holding that Mr. Nagpal neither resigned nor
    abandoned his employment, nor was the contract frustrated?

The law

[31]

As the motion judge observed, resignation must
    be clear and unequivocal. The evidence must objectively reflect an intention to
    resign, through words or conduct. Context is important. The totality of the
    circumstances must be considered:
Kieran v. Ingram Micro Inc.
(2004)
,
189 O.A.C. 58 (C.A.), at para. 27.

[32]

The test for abandonment by contrast, is whether
    the statements or actions of an employee, viewed objectively by a reasonable
    person, clearly and unequivocally indicate an intention to no longer be bound by
    the employment contract and, in particular, the implied term of every
    employment contract that the employee must attend work unless excused or unable:
Betts v. IBM Canada Ltd.
, 2015 ONSC 5298, 2016 C.L.L.C. 210-003 (
Betts

(ONSC)
), at para. 57, affd 2016 ONSC 2496, 31 C.C.E.L. (4th) 60 (Div.
    Ct.) (
Betts (Div. Ct.)
);
Pereira v. The Business Depot Ltd.
,

2009 BCSC 1178
, at para. 29,
revd on
    other grounds, 2011 BCCA 361
,
20 B.C.L.R.
    (5th) 295
.

[33]

A contract is frustrated where, without default
    of either party, a contractual obligation has become incapable of being
    performed because the circumstances in which performance is called for would
    render it a thing radically different from that which was undertaken by the
    contract:
Duong v. Linmar Corp
, 2010 ONSC 3159, 82 C.C.E.L. (3d) 84,
    at paras. 33-36, affd

2011 ONCA 38 and
Naylor Group Inc. v. Ellis-Don Construction
    Ltd.
, 2001 SCC 58, [2001] 2 S.C.R. 943 at 967-968.

[34]

The determination of whether a temporary
    incapacity to work constitutes frustration is also contextual. Illness alone is
    not a frustrating event and one must look at the length of the illness in
    relation to the duration of the employment contract:
Duong
, at para.
    35;
Antonacci v. Great Atlantic & Pacific Company of Canada Ltd.
(1998),
    35 C.C.E.L. (2d) 1 (Ont. C.J.), at para. 37, affd 128 O.A.C. 236 (C.A.), at
    paras. 9-11.

[35]

Evidence that relates to the post-termination
    nature and extent of an employees disability is permitted only if that
    evidence sheds light on the nature and extent of the employees disability at
    the time of the employees dismissal:
Ciszkowski v. Canac Kitchens
,
    2015 ONSC 73, 20 C.C.E.L. (4th) 171, at para 156.

The motion judges decision

[36]

The motion judge found that Mr. Nagpal said clearly,
    through his lawyer, that he had no intention of resigning or abandoning his
    employment.

[37]

He rejected IBMs argument that, notwithstanding
    these statements, Mr. Nagpals conduct in failing to appeal Manulifes
    decision or return to work amounted to abandonment or resignation. In his view,
    Mr. Nagpals conduct could not be looked at in isolation. IBM ignored the letters
    from Mr. Nagpals lawyer and simply relied on the process set out in the STD Policy,
    the application of which, it had delegated to Manulife. When that ran its
    course, IBM presented Mr. Nagpal with options that all contemplated a return to
    work, even though IBM knew Mr. Nagpal had been on STD leave for four
    months due to mental health issues, and had been told by Mr. Nagpals lawyer
    that Mr. Nagpals treating professionals had advised him against returning to
    work.

[38]

The motion judge observed that IBM made no
    attempt to engage with Mr. Freeman or obtain any further information about
    Mr. Nagpals condition, despite the fact that IBM knew he was under medical
    care. While the motion judge noted that Mr. Freeman failed to identify the
    gap in information [provided by Mr. Nagpal] or pursue an appeal [with Manulife]
    which might have disclosed more about Mr. Nagpals condition to IBM, this alone
    did not mean Mr. Nagpal resigned or abandoned his employment.

[39]

Finally, he considered IBMs argument that the
    STD Policy was part of Mr. Nagpals contract of employment such that Mr.
    Nagpal was deemed to have voluntarily resigned. The motion judge found that the
    STD Policy was not part of the employment contract that could be relied upon by
    IBM to conclude that he had resigned but held that this finding was not
    necessary for his decision. [H]aving regard to the entire factual context, he
    held that Mr. Nagpal did not resign, nor did his actions, viewed objectively,
    indicate that he no longer intended to be bound by the terms of his employment
    contract.

[40]

Moreover, at para. 52, he held that the contract
    of employment was not frustrated because when his employment was terminated:

IBM had very limited evidence of Mr. Nagpals
    condition, and no basis to find that his illness was permanent, or even
    long-term. It made no inquiries either. To the extent that evidence
    subsequently disclosed demonstrated that he had a longer-term illness, this was
    something that could easily be tolerated by a large company like IBM. An
    ability to tolerate long-term absences is indicated by the availability of
    long-term disability benefits and by the fact that had Mr. Nagpal appealed
    Manulifes decision his employment status would have continued, albeit without
    pay.

[41]

Since IBM conceded on the motion for summary
    judgment that Mr. Nagpal was wrongfully dismissed if IBMs arguments regarding
    resignation, abandonment, and frustration were unsuccessful, the motion judge
    granted summary judgment in favour of Mr. Nagpal.

Analysis and conclusion

[42]

There is no dispute that deference is owed to
    the motion judge on appeal. Whether or not there is a genuine issue requiring
    trial is a question of mixed fact and law. Absent an error in principle or an
    error with regard to a purely legal question, the motion judges findings should
    be overturned only where there is palpable and overriding error:
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84.

[43]

I see no error in the motion judges finding
    that IBM did not satisfy its onus to establish that Mr. Nagpal resigned or
    abandoned his employment on or before October 9, 2013, because (i) he and his
    counsel made clear and unequivocal assertions that he was not resigning or
    abandoning his employment; (ii) he advised IBM that he was suffering from ongoing
    mental health issues and, (iii) Mr. Nagpals lawyer told IBM that Mr. Nagpals healthcare
    providers said he was incapable of returning to work and they would be
    pleased to provide updated information if required.

[44]

Based on this undisputed evidence, I find there
    was no palpable and overriding error in the motion judges findings of fact or
    his conclusion that, viewed objectively, Mr. Nagpals actions do not reflect a
    clear intention to resign nor do they indicate an intention to no longer be
    bound by the employment contract. As discussed in greater detail below, nor do I
    accept IBMs argument that, notwithstanding this evidence, Mr. Nagpal resigned
    by operation of the STD Policy. As such, IBMs argument that the motion judge erred
    in finding that Mr. Nagpal neither resigned nor abandoned his employment must fail.

[45]

I further find that the motion judge made no legal
    error in concluding that the contract of employment was not frustrated.

[46]

IBM claims the motion judge made a palpable and
    overriding error of fact by failing to consider evidence that, at the time of Mr.
    Nagpals termination of employment, there was no reasonable likelihood of him
    returning to work at IBM within a reasonable period and that the contract of
    employment was therefore frustrated. This evidence was in the form of letters
    from legal counsel referenced above, and medical evidence.

[47]

I disagree. IBMs argument on the motion and
    before this court was that it was not provided with sufficient information to
    know the extent of Mr. Nagpals illness or when he could return to work. Since
    IBM did not know and did not ask Mr. Nagpals counsel to provide the
    information from Mr. Nagpals treating medical professionals, whom he said
    would be pleased to provide updated information if required, IBM could not
    satisfy its onus to establish that the contract of employment was frustrated at
    the time his employment terminated.

[48]

IBM cited
Ciszkowski
to support its
    position on appeal that post-termination evidence is permitted so long as it
    relates to the nature and extent of an employee's disability at the time of
    termination of employment.

[49]

The
Ciszkowski
decision was noted by
    the motion judge. He held, however, that the case also provides that an
    employer is not permitted to rely on post‑termination evidence if it is
    not relevant to the dismissal date. The medical notes IBM introduced on the
    motion were written prior to Mr. Nagpals dismissal but were not in IBMs possession
    at the time of dismissal. They are evidence that demonstrates only that, sometime
    later, IBM discovered he had a longer-term illness.

[50]

Moreover, the letters from Mr. Nagpals lawyer, which
    were available to IBM at the time his employment was terminated, were before
    the motion judge and his interpretation of those letters attracts deference. The
    letters do not establish that Mr. Nagpals illness was so severe that he was
    likely unable to continue his employment after the expiration of the term of IBMs
    long-term disability policy.

[51]

For these reasons, IBMs claim that the contract
    of employment was frustrated must fail.

2.

Did the motion judge err in holding that the STD
    Policy was not part of Mr. Nagpals employment contract?

[52]

IBM raises several arguments concerning the motion
    judges treatment of the STD Policy. IBM claims (i) the motion judge erred by
    granting summary judgment on a basis not pleaded, namely that the STD Plan did
    not form part of Mr. Nagpals contract of employment; (ii) the motion judge
    applied incorrect legal principles in determining that the STD Policy did not
    form part of the contract of employment; and in any event, (iii) Mr. Nagpal was
    estopped from denying the enforceability of the STD Policy.

[53]

In short, IBM claims that the STD Policy confers
    benefits on employees that they are not otherwise entitled to under statute or
    common law. The condition of receiving those benefits is that employees comply
    with the terms set out in the policy. As such, IBM claims the motion judge was
    wrong to decide that the STD Policy did not form part of the contract of
    employment and erred in failing to give effect to the STD Policys presumption
    of resignation.

[54]

As noted by IBM, this STD Policy has been found
    by other courts to be enforceable, insofar as noncompliance with procedures set
    out in the policy (i) may justify dismissal or (ii) may support a finding of resignation
    or abandonment:
Betts (ONSC)
, at para. 62;
Betts

(Div.
    Ct.)
, at para. 19.

[55]

The motion judge nonetheless held that the STD Policy
    could not be relied on by IBM to conclude that Mr. Nagpals failure to appeal
    Manulifes decision and his subsequent failure to return to work amounted to a
    resignation. He observed that termination provisions  rebutting an employees
    common-law entitlement to termination only on reasonable notice  require clear,
    express, and unambiguous language in the contract of employment. In his view, the
    STD Policy did not form part of the contract of employment because there was no
    evidence of a common intention to be bound by its terms, as IBM could change
    those terms unilaterally at any time. His analysis of this issue is consistent with
    the authorities in
Leeming v. IBM Canada Ltd.
, 2015 ONSC 1447, at
    paras. 48-51;
Rahemtulla v. Vanfed Credit Union
(1984), 51 B.C.L.R.
    200 (S.C.), at paras. 10-28, per McLachlin J. (as she then was);
Cheong v.
    Grand Pacific Travel & Trade (Canada) Corp.
, 2016 BCSC 1321, 35
    C.C.E.L. (4th) 316, at para. 48.

[56]

He held however, at para. 45, that it was not
    necessary for him to decide whether the STD Policy formed part of Mr. Nagpals
    contract of employment.

[57]

I agree with the motion judge that it is not
    necessary to decide whether this STD Policy forms part of the contract of
    employment because, even if it were part of the employment contract, the
    provision of the STD Policy at issue provides only that Mr. Nagpal will be 
presumed
to have voluntarily resigned (emphasis added).

[58]

I accept that, regardless of whether it forms
    part of the contract of employment, the presumption contained in the STD Policy
    could be relevant to a determination of whether Mr. Nagpal in fact clearly and
    unequivocally resigned his employment, as suggested by the Divisional Court in
Betts
,
    at para. 19. But this presumption must be looked at in the context of the other
    evidence that (i) Mr. Nagpal and his counsel clearly and consistently said
    that he
did not
intend to resign, and (ii) the above medical opinions substantiate
    Mr. Nagpals claim that he was suffering from mental health issues and there
    were concerns about his ability to return to work. Even if the presumption of
    resignation were part of the contract of employment, it was open to the motion judge
    to find that the evidence, taken as a whole and viewed objectively, does not clearly
    and unequivocally indicate Mr. Nagpals intention to resign or abandon his
    employment contract, particularly given the evidence that he was unable to work
    when he was seen by his psychologist.

[59]

In my view, Mr. Nagpals conduct, and that of
    his lawyer, was not without fault. But the motion judge was alive to these
    issues. As he noted, [e]ach case turns on its own facts. He considered and
    distinguished
Betts
and found on the evidence before him that,
    notwithstanding the language of the STD Policy, Mr. Nagpal did not resign.
    This finding is entitled to deference.

[60]

I cannot accept IBMs argument that the motion
    judge erred by deciding the motion on a basis not pleaded by Mr. Nagpal. IBM
    raised the effect of the STD Policy on its motion; Mr. Nagpal was entitled to
    dispute IBMs assertions. The motion judge was invited to consider the effect
    of the STD Policy and, in any event, did not decide the motion on the basis of its
    unenforceability. Moreover, there was no unfairness in granting Mr. Nagpal
    summary judgment given IBMs concession that liability would follow from the
    failure of its motion.

[61]

Finally, because the motion judge did not decide
    the motion for summary judgment on the basis of the enforceability of the STD
    Policy, I need not address IBMs estoppel argument.

3.

Whether the motion judge erred in finding that
    IBM had a duty to discuss Mr. Nagpals medical condition further with him

[62]

IBM also claims that the motion judge erred by
    asserting that IBM had a duty to discuss Mr. Nagpals medical condition with
    him.

[63]

The motion judge remarked, at para. 38, that:

IBM should have done more when Mr. Nagpal
    clearly expressed an intention to return to work when he was able to do so and
    said he could not do so because of his continuing illness, on the advice of his
    doctors. Instead, on September 10, rather than reaching out to Mr. Freeman [Mr.
    Nagpals lawyer] and inquiring into why Mr. Nagpal, a senior, a [sic] long-time
    employee was not able to return to work, Ms. Runnalls [from IBM] gave him an
    ultimatum and Mr. Simpson [from IBM] initiated steps to permanently replace Mr.
    Nagpal.

[64]

This statement was made in the context of the
    motion judges analysis of whether IBM had established that Mr. Nagpal resigned
    or abandoned his employment, not in the context of a free-standing duty on
    IBMs part.

[65]

Furthermore, as noted at para. 30 of the motion
    judges reasons, the parties agreed that unless IBM was able to establish that
    Mr. Nagpal resigned or abandoned his employment, or that his contract of
    employment was frustrated, IBM would concede that Mr. Nagpal was wrongfully
    dismissed.

[66]

Consistent with that agreement, the motion judge
    held, at para. 54 of his reasons, that:

In light of my findings that Mr. Nagpal did
    not resign or abandon his employment, and that the employment contract was not
    frustrated, IBMs motion for summary judgment is dismissed. It follows, then,
    that Mr. Nagpal was wrongfully dismissed, and I grant summary judgment in
    favour of the plaintiff accordingly. Although Mr. Nagpal brought no motion
    for summary judgment, the Court can grant judgment in such circumstances when
    all of the relevant evidence is before the Court, as here, and where, as here,
the parties agreed that the only
    remaining issue if IBM failed on its motion, is to determine damages
.
    [Emphasis added]

[67]

Given the above concession
that the wrongful dismissal claim succeeds if the claims of
    resignation, abandonment, and frustration are unsuccessful, the only remaining
    issue is the determination of damages.

D.

CONCLUSION

[68]

For the above reasons, I would dismiss the
    appeal and remit the issue of damages to the motion judge.

[69]

The parties did not reach an agreement on costs
    of the appeal and the motion below. I would order that, if the parties are
    unable to reach an agreement, the respondent shall make written submissions,
    not exceeding five pages, within 14 days of the release of these reasons. The
    appellant shall make written submissions, not exceeding five pages, within 10
    days after the respondent makes his submissions.

Released:
April
    30, 2021 D.D.

J.A.
    Thorburn J.A.

I
    agree. Doherty J.A.

I
    agree. S.E. Pepall J.A.


