





CITATION: Di
Tomaso
v. Crown
          Metal Packaging Canada LP, 2011 ONCA 469





DATE:
          20110622



DOCKET: C52945



COURT OF APPEAL FOR ONTARIO



Goudge
, MacPherson and Karakatsanis
          JJ.A.



BETWEEN



Antonio Di
Tomaso



Respondent/Plaintiff



and



Crown Metal Packaging Canada LP



Appellant/Defendant



M. Christine
ODonohue
, for the
          appellants



Peter
Cicak
and
Lior

Samfiru
, for the respondent



Heard: May 20, 2011



On appeal from the judgment of Justice Beth A. Allen of the
          Superior Court of Justice, dated October 19, 2010.



MacPherson J.A.:



A.

INTRODUCTION

[1]

The appellant, Crown Metal Packaging LP (Crown
    Metal), appeals from the judgment of Allen J. dated October 19, 2010, granting
    the respondent Antonio Di
Tomasos
Rule 20 motion for
    summary judgment.

B.

FACTS

[2]

Crown Metal was in the business of manufacturing metal
    packaging.  Mr. Di
Tomaso
was employed by Crown Metal for over 33 years as a two-piece mechanic and press
    maintainer, which involved setting up the line, minor repair work, and
    assisting the millwright with mechanical work on machines.  Crown Metal closed the facility where Mr. Di
Tomaso
worked on February 26, 2010.

[3]

On September 9, 2009, Crown Metal informed Mr. Di
Tomaso
that it no longer required his services.  Days before his expected termination date,
    Crown Metal informed Mr. Di
Tomaso
that his
    employment would be extended by several weeks.  Over a period of five months, Crown Metal repeatedly extended Mr. Di
Tomasos
employment just before each previously stated
    termination date. In total, Mr. Di
Tomaso
received
    five separate written notices of termination, containing a total of four
    different termination dates. Specifically, Crown Metal delivered letters to Mr.
    Di
Tomaso
dated:

1.

September
    9, 2009, with a termination date of November 6, 2009;

2.

November
    4, 2009, with a termination date of December 18, 2009;

3.

December
    15, 2009, with a termination date of February 19, 2010;

4.

February
    18, 2010, with a termination date of February 26, 2010; and

5.

February
    24, 2010, confirming the termination date of February 26, 2010.

[4]

After the September 9, 2009 notice, each subsequent
    letter reviewed the extensions in employment and characterized Mr. Di
Tomasos
employment as being extended for a temporary
    period.

[5]

When Mr. Di
Tomasos
employment was finally terminated on February 26, 2010, Crown Metal provided
    him with the statutory 26 weeks severance pay pursuant to the
Employment Standards Act, 2000
, S.O.
    2000, c. 41 (
ESA
), accrued vacation
    pay, and benefits to March 31, 2010. Mr. Di
Tomaso
was 62 years old.

(1)

The Action Below

[6]

Mr. Di
Tomaso
filed an action
    in the Superior Court of Justice alleging that Crown Metal failed to provide
    proper notice or termination pay in lieu thereof, as required by the
ESA
.  He also sought common law damages for wrongful dismissal equivalent to
    24 months pay.

[7]

Crown Metal claimed that its September 9, 2009 notice
    of termination was valid, and that Mr. Di
Tomasos
entire
    subsequent temporary employment constituted an authorized period of working
    notice.  With respect to Mr. Di
Tomasos
common law claim, Crown Metal took the position
    that he was entitled, at most, to 12 months notice because, emphasizing the
    character of his employment, he was an unskilled and low level worker.

[8]

The action proceeded by way of a Rule 20 motion for
    summary judgment before Justice Beth Allen.  On the issue of working notice, the motion judge reviewed the
ESA
regulation that authorizes an
    employer to count a period of temporary employmenti.e. work commenced after
    the termination notice but prior to the termination dateagainst the employees
    statutory notice entitlement:
Termination
    and Severance of Employment
, O. Reg. 288/01, s. 6 (the Regulation).  Specifically, the Regulation provides:

6.         (1)
    An employer who has given an employee notice of termination in accordance with
    the Act and the regulations may provide temporary work to the employee
without
    providing a further notice of termination in respect of the day on which the
    employees employment is finally terminated if that day occurs not later than
    13 weeks after the termination date specified in the original notice
.

(2) The provision of temporary work to an employee
    in the circumstances described in subsection (1) does not affect the
    termination date as specified in the notice or the employees period of
    employment. [Emphasis added.]

[9]

In Crown Metals view, each of its extensions was less
    than 13 weeks in length, so its September 9, 2009 notice remained valid thus
    providing Mr. Di
Tomaso
with working notice from that
    date to February 26, 2010.  Mr. Di
Tomaso
argued that the extensions should be viewed
    cumulatively, and that only the final letter of February 24, 2010 provided
    clear and unequivocal notice of termination.

[10]

The motion judge agreed with Mr. Di
Tomaso
at
para
. 19:

I find I am bound by the express language of
    subsection 6(1) to accept the plaintiffs position.  The legislation clearly allows for notices
    temporarily extending termination if the final date of termination in respect
    of the extension is not more than 13 weeks after the date of the initial termination
    notice.  That interpretation makes
    practical sense since there would be no certainty for an employee as to when
    his employment would finally end if the employer was not limited in the length
    of extensions of employment.

[11]

The motion judge went on to note that the
ESA
, as remedial minimum standards
    legislation, should be interpreted to the benefit of the employee where
    ambiguities arise.  Finally, at
para
. 21 she found that Mr. Di
Tomasos
position was supported by the requirement that notice of termination be clear
    and unequivocal.

[12]

The motion judge also rejected Crown Metals suggestion
    that Mr. Di
Tomasos
entitlement to notice was capped
    at 12 months because he was an unskilled worker in a non-managerial
    position.  She referred to the factors to
    consider in determining an employees appropriate notice period, as set out in
Bardal
v. Globe & Mail Ltd.
(1960), 24
    D.L.R. (2d) 140 (Ont. H.C.J.), at p. 145 (
Bardal
).  Those factors include: the character of the
    employment, the employees length of service, the employees age, and the
    availability of comparable employment in the market.

[13]

According to Crown Metal, this courts ruling in
Cronk v. Canadian General Insurance Co.
(1995),
    128 D.L.R. (4th) 147 (
Cronk
)
    established a hard limit of 12 months on the notice to which clerical and
    unskilled labourers are entitled.  In
    Crown Metals view, the

nature of Mr.
    Di
Tomasos
employment placed him in that limited
    category.  He was not a manager, nor was
    he a skilled worker.

[14]

Mr. Di
Tomaso
countered that
    a more recent decision of this court dispelled the notion that there is a cap
    on the notice period available to unskilled employees:
Minott
v.
OShanter
Development Company Ltd.
(1999), 168 D.L.R. (4th) 270 (
Minott
).  At
para
. 76 of
Minott
,
Laskin
J.A. wrote:

I do not regard this court's decision in
Cronk
as establishing an upper limit of
    12 months notice for all non-managerial or non-supervisory employees. At most
    it deals with one occupational category, clerical employees. Moreover, the
    imposition of an arbitrary 12 months ceiling for all non-managerial employees
    detracts from the flexibility of the
Bardal
test and restricts the ability of courts to take
    account of all factors relevant to each case and of changing social and
    economic conditions.

[15]

In that case, this court upheld the trial judges
    finding that a 13-month notice period was appropriate for an unskilled,
    43-year-old employee who had served for 11 years.

[16]

The motion judge held that the authorities did not
    support the proposition that the nature of Mr. Di
Tomasos
employment placed a 12-month cap on the notice to which he was entitled.

[17]

After reviewing the cases presented by both parties,
    noting that Mr. Di
Tomaso
was 62 years old on the
    termination date and had served for 33 years, and considering his efforts to
    mitigate by finding other employment in the market, the motion judge found that
    Mr. Di
Tomaso
was entitled to 22 months of notice.

C.

ISSUES

[18]

The appellant Crown Metal raises two main arguments on
    appeal, namely:

1.

the
    motion judge erred in finding that Mr. Di
Tomaso
did
    not have clear and unequivocal notice of termination until February 24, 2010;
    and

2.

Mr.
    Di
Tomaso
received reasonable working notice of
    termination in light of his employment as a non-managerial employee.

[19]

I would not give effect to either argument for the
    reasons that follow.

D.

ANALYSIS

(1)

The Termination Date

[20]

The motion judges interpretation of the Regulation is
    correct: it contemplates a single period of temporary work that is not to
    exceed 13 weeks.  If the temporary work
    exceeds that duration, fresh notice is required.  To find, as Crown Metal suggests, that the
    Regulation allows employers to give notice of termination but then extend
    employment for multiple, serialized periods of less than 13 months would be
    inconsistent with the
ESA
s status as
    remedial, benefit-conferring legislation designed to protect the interests of
    employees:
Rizzo v. Rizzo Shoes Limited
,
    [1998] 1 S.C.R. 27, at
para
. 36.

[21]

I would add only that clear and unambiguous notice of
    termination must include the final termination date.  In the present case, the September 9, 2009
    notice of termination included a termination date that came and went, as did
    several others during the five-month period that followed. As the motion judge
    found, the cumulative effect of the multiple extensions created uncertainty
    for [Mr. Di
Tomaso
] as to when he would no longer
    have his job.  It was not until the
    February 24, 2010 letter that this uncertainty was cured.  Mr. Di
Tomasos
termination date was confirmed, and Crown Metals notice to him was made good
    on that day.

(2)

The
Bardal
Analysis

[22]

Crown Metal argues that the character of employment
    factor is often given the greatest weight in the determination of [the]
    appropriate notice period, and that the motion judge erred by giving it
    insufficient weight in this case.  Crown
    Metal also renews its argument that this courts decision in
Cronk
and a range of other employment
    law cases establish 12 months as the upper limit of appropriate notice for
    clerical and unskilled employees.

[23]

On the latter point, I agree with Mr. Di
Tomaso
that this courts decision in
Minott
is a full answer.
Laskin
J.A.
    rejected the notion that 12 months is the cap for every clerical and unskilled
    employee, regardless of the other
Bardal

factors.  Crown Metal argues that
Laskin
J.A. allowed that it might be appropriate to establish upper limits for
    particular classes of cases:
Minott
at
para
. 72.  However,
    he did not do so in
Minott
and I would decline to do so here.

[24]

Moreover, the cases submitted by both parties help
    establish a range of reasonable notice periods.   The 22 months awarded by the motion judge is
    within the upper end of the range, and that is understandable given that Mr. Di
Tomaso
would have scored so highly on the other
Bardal
factors:
    he was 62 years old at the time of his dismissal, he had served the company for
    33 years, and he had made unsuccessful inquiries or applications with 22
    companies in the area.

[25]

By way of contrast, the claimant in
Minott
served in a
    non-supervisory role for 11 years, was 43 years old at the time of termination,
    and was unlikely to find similar work because of a recession.  Here, as in that case, to interfere with the
    motion judges determination of the appropriate notice period would amount to unwarranted
    tinkering:
Minott
at
para
. 77.

[26]

With regard to the appropriate weight to be given to
    the character of employment, I am also mindful of
McRuer
C.J.H.C.s statement in
Bardal

at p. 145, that [t]here can be no
    catalogue laid down as to what is reasonable notice in particular classes of
    cases.
Bastarache
J., writing for the majority of the Supreme Court in
Honda Canada Inc. v.
Keays
, [2008] 2
    S.C.R. 362, cited this statement with approval at
para
.
    31 and went on to caution that [n]o one
Bardal
factor should be given
    disproportionate weight.

[27]

Crown Metal would emphasize the importance of the
    character of the appellants employment to minimize the reasonable notice to
    which he is entitled. I do not agree with that approach. Indeed, there is
    recent jurisprudence suggesting that, if anything, it is today a factor of
    declining relative importance: see
Medis
Health and
    Pharmaceutical Services Inc. v. Bramble
(1999), 175 D.L.R. (4th) 385 (NBCA)
    (
Bramble
) and
Vibert
v.
Paulin
(2008), 291 D.L.R. (4th) 302
    (NBCA).

[28]

This is particularly so if an employer attempts to use
    character of employment to say that low level unskilled employees deserve less
    notice because they have an easier time finding alternative employment. The
    empirical validity of that proposition cannot simply be taken for granted, particularly
    in todays world. In
Bramble
,
Drapeau
J.A. put it this way, at
para
.
    64:

The proposition that junior employees have an
    easier time finding suitable alternate employment is no longer, if it ever
was,
a matter of common knowledge. Indeed, it is an
    empirically challenged proposition that cannot be confirmed by resort to
    sources of indisputable accuracy.

[29]

In my view, the motion judge conducted an appropriately
    holistic review of the case before her.  She
    did not give disproportionate weight to any of the
Bardal

factors. She dedicated nine paragraphs of her reasons to the
    character of employment factor but it was simply not as relevant in these
    circumstances as the other three factors. She did not err in doing so.

E.

DISPOSITION

[30]

I would dismiss the appeal.  The respondent is entitled to its costs of
    the appeal which I would fix at $14,000 inclusive of disbursements and HST.

RELEASED:  JUN 22 2011 (S.T.G.)
J.C. MacPherson
    J.A.

I
    agree. S.T.
Goudge
J.A.

I
    agree. Karakatsanis J.A.


