



COURT OF APPEAL FOR ONTARIO

CITATION: Kotecha v.
    Affinia Canada ULC, 2014 ONCA 411

DATE: 20140520

DOCKET: C57512

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Niranjan Kotecha

Plaintiff/Respondent

and

Affinia Canada ULC

Defendant/Appellant

Christopher A. Chekan, for the appellant Affinia Canada
    ULC

Pamela Krauss, for the respondent Niranjan Kotecha

Heard and released orally: April 24, 2014

On appeal from the orders of Justice P. B. Hambly of the Superior
    Court of Justice, both dated July 18, 2013.

ENDORSEMENT

[1]

The respondent, who worked for 20 years for the appellant, an auto
    manufacturer, commenced a simplified proceeding arising out of the termination
    of his employment.

[2]

The primary issue in the proceeding was the appropriate length of
    notice.  The motion judge granted the respondents motion for summary judgment
    and awarded 22 months pay in lieu of notice, in addition to the working notice
    provided.

[3]

On the issue of the actual working notice, we agree with the position of
    the appellant that the period of working notice was 11 weeks.

[4]

The appellant argues before this court that the motion judge erred in
    disregarding the unreported judgment of Taylor J. of the Superior Court in
Sharma
    v. Affinia Canada
and notes that on almost identical facts, the motion
    judge in
Sharma
awarded 13 months reasonable notice.  According to
    the appellant, the motion judge was bound by the doctrine by
stare decisis
to award a similar period of reasonable notice in this case.

[5]

We reject this ground of appeal. The principle of
stare decisis
requires that courts render decisions that are consistent with the previous
    decisions of higher courts:
Bedford v. Canada
, 2012 ONCA 186, at para.
    56. While other decisions of the Superior Court are persuasive, they are not
    binding as the appellant seems to suggest. Moreover, the determination of the
    appropriate notice period is a very fact-specific exercise and is calculated in
    accordance with numerous factors as set out in
Bardal v. Globe and Mail Ltd
.,
    [1960] O.J. No. 149, being the character of employment, the length of service,
    the age of the employee and the availability of other similar employment.

[6]

In the case at bar, the appellant had worked at the company for 20
    years, whereas, Ms. Sharma had worked there for 16 years. The appellant in this
    case was also eight years older than the plaintiff in the
Sharma
case.

[7]

The motion judge was entitled to consider the period of reasonable
    notice owing to the respondent on the basis of the facts before him, rather
    than blindly following a case with different facts.

[8]

Notwithstanding the foregoing, the court should strive to ensure that
    notice periods, which are inherently individual, are consistent with the case
    law. That was not done in this case.

[9]

In our view, the notice period in this case, totalling 24 and one-half
    months, is excessive and there are no exceptional circumstances that would
    justify this award.  However, we do not accept the appellants position that a
    13-month notice period is appropriate.

[10]

Having
    regard to the fact that the respondent is older than Ms. Sharma, that he
    has no realistic possibility of obtaining similar employment and that he had a
    longer tenure of service than Ms. Sharma, but considerably less than the
    plaintiff in
Di Tomaso v. Crown Metal Manufacturing Packaging Canada LP
,
    2010 O.J. No. 4414, we conclude that an appropriate notice period is 18 months.
    From this notice period, the 11 weeks working notice must be deducted.

[11]

The
    appeal is granted in part to adjust the notice period to 18 months, less the
    working notice of 11 weeks. We trust that the parties can calculate the
    appropriate adjustments to damages where necessary based on the foregoing.

[12]

With
    respect to the issue of costs, having regard to the history of the matter, the
    position taken by the employer, and given that the amount of notice determined
    to be appropriate in this case is far in excess of the position maintained by
    the appellant, we are of the view that nominal costs are appropriate in the
    circumstances. We award the appellant costs of the appeal in the amount of
    $2,500.00 inclusive of HST and disbursements.

[13]

After
    the hearing of this appeal, the appellant made a written submission that
    because the parties posthearing calculation of damages totalled $44,720.95,
    the respondent did not better his offer to settle of $50,000 served prior to the
    motion and, therefore, the motion judges award of costs on a substantial
    indemnity basis should be set aside.

[14]

It
    is evident from a review of the motion judges ruling on costs that, while he
    made reference to the offer to settle, he found that the conduct of the
    appellants counsel was unreasonable and awarded substantial indemnity costs
    pursuant to R. 20.06, which permits,
inter alia
, a motion judge to fix
    costs on a substantial indemnity basis where a party has acted unreasonably in
    responding to a motion for summary judgment. Accordingly, we decline to
    interfere with the motion judges costs award.

Doherty J.A.

E.A. Cronk J.A.

C.W. Hourigan J.A.


