Ceccol v. Ontario Gymnastic Federation, (2001) 149 O.A.C. 315 (CA)

• Judge: Osborne, A.C.J.O., Doherty and MacPherson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 18, 2001
• Jurisdiction: Ontario
• Citations: (2001), 149 O.A.C. 315 (CA)

Ceccol v. Gymnastic Federation (2001), 149 O.A.C. 315 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. SE.029

Diana Ceccol (plaintiff/respondent) v. The Ontario Gymnastic Federation (defendant/appellant)

(C31743)

Indexed As: Ceccol v. Ontario Gymnastic Federation

Ontario Court of Appeal

Osborne, A.C.J.O., Doherty  and MacPherson, JJ.A.

September 6, 2001.

Summary:

From 1981 onward, an employee was employed as an administrative director pursuant to a series of annual one year standard form contracts. The employer never drew to the employee's attention a clause of the contracts that provided that the parties would abide by the Ontario Employment Standards Act respecting notice of termination of employment. The employer treated the employee as a full time employee. The 1986-1987 and subsequent contracts described her as a full time employee. In May 1997, the employer dismissed her. The employee sued for wrongful dismissal.

The Ontario Court (General Division), in a decision reported at 91 O.T.C. 254, held that the employer had not rebutted the presumption of a common law requirement of reasonable notice. In the absence of special circumstances, the employee would have been entitled to 16 months' pay in lieu of notice. However, the court reduced the award to 12 months' pay where the employee pursued her own business and there was no reasonable prospect that the business would fulfil her obligation to mitigate. The employer appealed. The employee cross-appealed on the mitigation issue.

The Ontario Court of Appeal dismissed the appeals.

Contracts - Topic 7401

Interpretation - General principles - Intention of parties (incl. reasonable expectations) - From 1981 onward, an employee was employed pursuant to a series of annual one year standard form contracts - Article 1.1 of the contracts provided for a 12 month term "unless sooner terminated or extended as hereinafter provided" - Article 1.2 provided that the contract was subject to renewal if the employee received acceptable performance reviews and the parties agreed on the terms and conditions - In May 1997, the employer dismissed the employee without cause - The Ontario Court of Appeal affirmed that the contract was for an indefinite term subject to renewal and termination in accordance with the contract's other provisions - The relationship between articles 1.1 and 1.2 was unclear and the ambiguity justified the trial judge's decision to hear and rely on evidence about the parties' intentions and conduct - That evidence supported a finding of an indefinite term - The contract lacked the "unequivocal and explicit language" necessary to establish a fixed term contract - See paragraphs 12 to 27.

Contracts - Topic 7409

Interpretation - General principles - Subsequent conduct of parties - [See Contracts - Topic 7401 ].

Contracts - Topic 7430

Interpretation - Ambiguity - Admissibility of extrinsic evidence - [See Contracts - Topic 7401 ].

Evidence - Topic 6204

Parole evidence rule - General principles - Evidence offered to contradict or explain written agreement - [See Contracts - Topic 7401 ].

Master and Servant - Topic 1010

Contract of hiring (employment contract) - General - Interpretation - [See Contracts - Topic 7401 ].

Master and Servant - Topic 1162

Contract of hiring (employment contract) - Implied terms - Reasonable notice of termination - Article 5.1 of an employment contract gave the employer the right to terminate for cause - Article 5.2 gave the employer the right to terminate probationary employees - Article 5.3 gave the employee a right of termination - Article 5.4 provided that the parties would abide by the Ontario Employment Standards Act respecting notice of termination - Dismissal without cause was not specifically addressed - The employer asserted that pursuant to article 5.4, it was only required to give statutory notice to an employee it had dismissed without cause (eight weeks) and not reasonable notice at common law (16 months) - The Ontario Court of Appeal held that it was possible to interpret the contract as permitting only the types of termination provided for under articles 5.1, 5.2 and 5.3, with article 5.4 applying if the right to terminate under one of those articles was exercised - Accordingly, article 5.4 did not achieve the level of clarity required to rebut the common law presumption of reasonable notice - Further, out of the two possible interpretations, the one which preserved the common law entitlement to reasonable notice was preferable - See paragraphs 28 to 54.

Master and Servant - Topic 1200

Contract of hiring (employment contract) - Duration of contract - Indefinite v. fixed term - [See Contracts - Topic 7401 ].

Master and Servant - Topic 1200

Contract of hiring (employment contract) - Duration of contract - Indefinite v. fixed term - The Ontario Court of Appeal stated that "... a court should be particularly vigilant when an employee works for several years under a series of allegedly fixed term contracts. Employers should not be able to evade the traditional protections of the [Employment Standards Act] and the common law by resorting to the label of `fixed term contract' when the underlying reality of the employment relationship is something quite different, namely, continuous service by the employee for many years coupled with verbal representations and conduct on the part of the employer that clearly signal an indefinite term relationship." - See paragraph 26.

Master and Servant - Topic 1230

Contract of hiring (employment contract) - Termination - Notice of termination - By employer - [See Master and Servant - Topic 1162 ].

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - An employer dismissed an administrative director whom it had employed for 16 years - The director sued for wrongful dismissal - The Ontario Court of Appeal affirmed an award of 16 months' pay in lieu of notice, reduced to 12 months for failure to mitigate - The employee had pursued her own business and there had been no reasonable prospect that the business would fulfil her obligation to mitigate - See paragraphs 28 to 54.

Master and Servant - Topic 8007

Dismissal without cause - Notice of dismissal - Reasonable notice - Long service employees dismissed - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 8064

Dismissal without cause - Damages - Mitigation - [See Master and Servant - Topic 1162 ].

Cases Noticed:

Lefebvre v. HOJ Industries Ltd.; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; 136 N.R. 40; 53 O.A.C. 200, refd to. [para. 1].

Gagnon v. Chambly (Ville), [1999] 1 S.C.R. 8; 235 N.R. 265, dist. [para. 1].

Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., [1980] 1 S.C.R. 888; 32 N.R. 488, refd to. [para. 13].

Lambert v. Canadian Association of Optometrists (1994), 6 C.C.E.L.(2d) 129 (Ont. Gen. Div.), affd. (1996), 19 C.C.E.L.(2d)315 (C.A.), dist. [para. 17].

MacDonald v. ADGA Systems International Ltd. (1999), 117 O.A.C. 95; 41 C.C.E.L.(2d) 5 (C.A.), leave to appeal refused (1999), 243 N.R. 398; 127 O.A.C. 396 (S.C.C.), refd to. [para. 34].

Tilden Rent-A-Car Co. v. Clendenning (1978), 18 O.R.(2d) 601 (C.A.), refd to. [para. 37, footnote 4].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 47].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 47].

Gillespie v. Union Optics Corp. (Canada) (1987), 18 C.C.E.L. 58 (Ont. H.C.), affd. (1989), 26 C.C.E.L. xxiv (C.A.), refd to. [para. 52].

Peet v. Babcock & Wilcox Industries Ltd. (2001), 142 O.A.C. 314 (C.A.), refd to. [para. 52].

Authors and Works Noticed:

England, Geoffrey, Individual Employment Law (2000), p. 222 [para. 25].

Counsel:

Connie Reeve and Jason Beeho, for the respondent;

William Gale and Natalie MacDonald, for the appellant.

This appeal and cross-appeal were heard on May 18, 2001, by Osborne, A.C.J.O., Doherty and MacPherson, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., delivered the following judgment for the court on September 6, 2001.