



COURT OF APPEAL FOR ONTARIO

CITATION: Currie v. Nylene Canada Inc., 2022
    ONCA 209

DATE: 20220314

DOCKET: C69279

Pepall, Brown and Thorburn JJ.A.

BETWEEN

Diane Currie

Plaintiff (Respondent)

and

Nylene Canada Inc.

Defendant (Appellant)

Caroline Richard and Travis Ujjainwalla,
    for the appellant

Melynda Layton and Ken Krupat, for the
    respondent

Heard: February 3, 2022 by
    video conference

On appeal from the judgment of Justice
    Marc E. Smith of the Superior Court of Justice, dated March 16, 2021, with
    reasons reported at 2021 ONSC 1922, 71 C.C.E.L. (4th) 82.

REASONS FOR DECISION

OVERVIEW

[1]

Ms. Currie brought an action for damages for wrongful
    dismissal and other relief after the termination of her employment with the appellant,
    Nylene Canada Inc. The trial judge awarded her damages based on a period of
    reasonable notice of 26 months.

[2]

Nylene appeals the damage award to Ms. Currie on
    two grounds:

(i)

The trial judge erred by using the period from 1979 until 2018 as
    the basis for determining the period of reasonable notice. Nylene contends that
    Ms. Curries years of service for the purpose of assessing the reasonable
    notice period ran only from June 2017, when she retired from and then was
    rehired by Nylene, until December 2018; and

(ii)

The trial judge erred in law by exceeding a maximum reasonable
    notice period of 24 months as there is no basis in this case to justify a
    longer notice period.

[3]

Nylene submits that Ms. Curries retirement in
    June 2017 constituted a break in service of her employment such that her
    immediate re-hiring through the June Employment Letter re-set her years of
    service clock back to zero.

[4]

We disagree. First, as the trial judge said, Ms.
    Currie was not prepared to stop working. She signed the documents prepared by
    Nylene for the sole purpose of accessing her Pension Plan and on the assurance
    that her employment would remain the same. Second, Ms. Currie relied upon the
    representations made to her that her employment conditions would remain the
    same, which meant that her status as a long-standing employee and that her
    tenure would not be affected by her signing a new employment agreement.

[5]

In his reasons, the trial judge carefully articulated
    the evidence in support of those findings. Specifically, he found that:

i.

Ms. Curries employment record chronicled
    important dates from her hiring to her termination but there was nothing on the
    alleged retirement;

ii.

Ms. Currie did not provide Nylene with any
    written notice of resignation or retirement;

iii.

Ms. Currie testified that she was told that if
    she accessed her pension, nothing was going to change in her employment and
    everything would remain the same. A fair reading of the two June 9, 2017
    documents certainly supports that understanding;

iv.

Ms. Currie testified that she relied upon the
    companys representation that everything would remain the same when she signed
    the June Employment Letter; and

v.

As well, she testified that she was not prepared
    to stop working but opted to sign the documents prepared by Nylene only after
    her employer approached her and informed her about her entitlement under the
    BASF Pension Plan.

[6]

The trial judge accepted Ms. Curries testimony
    on these points, as he was entitled to do.

[7]

Given his findings of fact, it was open to the
    trial judge to conclude that the retirement/re-hiring process proposed by
    Nylene in June 2017, to which Ms. Currie agreed, was for the limited purpose of
    enabling her to access her BASF Pension Plan and did not affect her years of
    service with Nylene for the purpose of determining the reasonable notice period.

[8]

As such we find no palpable and overriding error
    and this ground of appeal fails.

[9]

Second, we disagree that the trial judge erred
    in awarding a 26-month notice period given Ms. Curries unique situation.

[10]

Both parties asserted that Ms. Currie was
    entitled to reasonable notice but disagreed as to what that period would be.
    Nylene suggested it was 15 months and Ms. Currie took the position that it was
    26 months notice.

[11]

The trial judge articulated in detail the
    factors he considered in arriving at the conclusion that 26 months notice was
    warranted. Those factors include the fact that:

(i)

Ms. Currie left high school to start work (at
    age 18) as a twisting operator at Nylene and worked there for her entire
    career, ultimately rising to become the Chief Operator reporting to the Shift
    Leader;

(ii)

After working at Nylene for 40 years, her
    employment was terminated by Nylene near the end of her career, when she was 58
    years old;

(iii)

Ms. Currie had very specialized skills making it
    very difficult for her to find alternative suitable employment. Moreover, at
    the time of her termination, her computer skills were limited. She made
    diligent efforts to attempt to gain basic computer skills and mitigate her
    damages but the trial judge was not convinced she would succeed in securing
    alternative employment;

(iv)

The work landscape had evolved significantly
    since Ms. Currie had entered the workforce in 1979 and, as her experience was
    limited to working for Nylene and its predecessors in one manufacturing
    environment, her skills were not easily transferable; and

(v)

Given Ms. Curries age, limited education and
    skills set, the termination was equivalent to a forced retirement.

[12]

The trial judge firmly anchored his reasonable
    notice analysis in the factors identified in
Bardal
    v. The Globe and Mail Ltd.
(1960), 24 D.L.R. (2d)
    140 (Ont. H.C.). As well, he acknowledged that the decisions of this court in
Lowndes v. Summit Ford Sales Ltd.
(2006), 206 O.A.C. 55 (C.A.) and
Dawe v. The Equitable Life Insurance
    Company of Canada
, 2019 ONCA 512, 435 D.L.R. (4th) 573 state that exceptional
    circumstances should exist to support a notice period that exceeds 24 months.

[13]

These grounds provide ample support for the trial
    judges award of damages in lieu of reasonable notice.

[14]

For these reasons, the appeal is dismissed.

[15]

If the parties are unable to agree on costs,
    they may submit brief written submissions on costs of no more than two pages.

S.E.
    Pepall J.A.

David
    Brown J.A.

J.A.
    Thorburn J.A.


