



COURT OF APPEAL
    FOR ONTARIO

CITATION: English v. Manulife Financial Corporation, 2019
    ONCA 612

DATE: 20190719

DOCKET: C65872

Lauwers, Benotto and Brown JJ.A.

BETWEEN

Elisabeth English

Plaintiff (Appellant)

and

Manulife Financial Corporation

Defendant (Respondent)

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.

Benotto J.A.:

[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 appellants 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?

[A]: Yes.

[9]

Shortly thereafter Mr. Ramnath announced Ms. Englishs 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. Englishs
    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 Manulifes computer systems. With conversion of systems having
    been announced to us as Manulifes 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 were 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 dont 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 Plaintiffs 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 appellants 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 appellants 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 appellants
    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. Ramnaths 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. Ramnaths 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 judges
    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: MLB JUL 19 2019

M.L. Benotto J.A.

I agree. P. Lauwers J.A.

I agree. David Brown J.A.


