



COURT OF APPEAL FOR ONTARIO

CITATION: Design Filtration Microzone Inc. v. Cunningham,
    2018 ONCA 468

DATE: 20180518

DOCKET: C64414

Hoy A.C.J.O., Brown and Trotter JJ.A.

BETWEEN

Design Filtration Microzone Inc.

Appellant (Defendant)

and

Craig Cunningham

Respondent (Plaintiff)

Nigel McCready, for the appellant

D. Bruce Sevigny, for the respondent

Heard and released orally:  May 16, 2018

On appeal from the order of Justice Calum MacLeod of the Superior
    Court of Justice, dated September 7, 2017.

REASONS FOR DECISION

[1]

The appellant dismissed the respondent, without cause, on
    December 16, 2016. At the time, the respondent was 55 years of age.

[2]

The motion judge granted summary judgment in favour of the
    respondent, among other things, ordering the appellant to pay the respondent 12
    months salary, benefits and pension contributions in lieu of notice, and a
    $12,000 bonus for the year of termination. The appellant takes issue with both
    of these aspects of the judgment.

[3]

The appellant submits that in awarding the respondent a notice period of
    12 months, the motion judge placed too little emphasis on the fact that the
    respondent is a professional engineer with approximately two decades of
    management experience, and therefore should be attractive to potential
    employers; and too much emphasis on the respondents age, the character of his
    employment, and the specialized nature of his industry. The appellant renews
    its argument that a notice period of 8 to 10 months is appropriate.

[4]

We are not persuaded that there is any basis to interfere with the
    motion judges conclusion that a 12-month notice period is justified on the
    facts of this case. The motion judges determination of the period of
    reasonable notice is entitled to deference from this court. The motion judge
    made no error in principle. He considered the relevant factors and 12 months
    notice is reasonable in the circumstances. The appellants submission that the
    motion judge accorded too little weight to some relevant factors, and not
    enough to others, is an attempt to re-argue the motion.

[5]

Nor are we persuaded that there is any basis to interfere with the
    motion judges finding of fact that the appellant would have paid the
    respondent a discretionary bonus for 2016 if the decision to terminate him had
    not been taken. His finding is supported by the record, including the discovery
    evidence of the appellants President that he intended to pay the respondent a
    performance bonus for 2016 right up until the point that the appellants parent
    company advised him that the respondent was to be terminated.

[6]

As to the quantum of the bonus, we reject the appellants argument that
    this courts decision in
Paquette v. TeraGo Networks Inc.
, 2016 ONCA
    618, 269 A.C.W.S. (3d) 495 required the motion judge to average the bonuses the
    respondent received in the three years prior to dismissal. In
Paquette
,
    the court simply endorsed a calculation that the terminated employee in that
    case proposed and that had been utilized in another case. The court noted that
    the employer did not offer any evidence to suggest an alternative amount that
    the employee would have received by way of bonus. The quantum fixed by the
    motion judge in this case was reasonable, having regard to the amount of the
    discretionary bonuses paid to the respondent in the years that he received them
    and the appellants profit for 2016, before a reserve for this litigation was
    taken.

[7]

Accordingly, the appeal is dismissed. The respondent shall be entitled
    to his costs of the appeal fixed in the amount of $10,000, including disbursements
    and HST.

Alexandra Hoy
    A.C.J.O.

D.M. Brown J.A.

G.T. Trotter J.A.


