Di Tomaso v. Crown Metal Packaging,

• Jurisdiction: Ontario
• Judge: Goudge, MacPherson and Karakatsanis, JJ.A.
• Neutral Citation: 2011 ONCA 469
• Date: 20 May 2011
• Court: Court of Appeal (Ontario)

Di Tomaso v. Crown Metal Packaging (2011), 282 O.A.C. 134 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JN.026

Antonio Di Tomaso (respondent/plaintiff) v. Crown Metal Packaging Canada LP (appellant/defendant)

(C52945; 2011 ONCA 469)

Indexed As: Di Tomaso v. Crown Metal Packaging Canada LP

Ontario Court of Appeal

Goudge, MacPherson and Karakatsanis, JJ.A.

June 22, 2011.

Summary:

An employee was employed by the employer for over 33 years. The employer closed the facility where the employee worked on February 26, 2010. On September 9, 2009, the employer informed the employee that it no longer required his services. The employer provided him with the statutory 26 weeks' severance pay pursuant to the Employment Standards Act, accrued vacation pay, and benefits to March 31, 2010. The employee sued, alleging that the employer failed to provide proper notice or termination pay in lieu thereof, as required by the Act. He also sought common law damages for wrongful dismissal equivalent to 24 months' pay. The employee moved for summary judgment.

The Ontario Superior Court allowed the motion, granting summary judgment to the employee. The court found that the employee was entitled to 22 months' notice. The employer appealed.

The Ontario Court of Appeal dismissed the appeal.

Master and Servant - Topic 7997

Dismissal without cause - Notice of dismissal - Notice - What constitutes - An employee was employed by the employer for over 33 years - The employer closed the facility where the employee worked on February 26, 2010 - On September 9, 2009, the employer informed the employee that it no longer required his services - Days before his expected termination date, the employer informed the employee that his employment would be extended by several weeks - Over a period of five months, the employer repeatedly extended the employee's employment just before each previously stated termination date - In total, the employee received five separate written notices of termination, containing a total of four different termination dates - When the employee's employment was finally terminated on February 26, 2010, the employer provided him with the statutory 26 weeks' severance pay pursuant to the Employment Standards Act, accrued vacation pay, and benefits to March 31, 2010 - The employee sued, alleging that the employer failed to provide proper notice or termination pay in lieu thereof, as required by the Act - He also sought common law damages for wrongful dismissal equivalent to 24 months' pay - The employee moved for summary judgment - The motion judge allowed the motion, holding that the employee was entitled to 22 months' notice - The employer appealed, asserting that the motion judge erred in finding that the employee did not have clear and unequivocal notice of termination until February 24, 2010 - The Ontario Court of Appeal dismissed the appeal - The motion judge's interpretation of the Termination and Severance of Employment Regulation was correct: it contemplated a single period of temporary work that was not to exceed 13 weeks - If the temporary work exceeded that duration, fresh notice was required - Further, "the cumulative effect of the multiple extensions created uncertainty for [the employee] as to when he would no longer have his job." - It was not until the February 24, 2010 letter that this uncertainty was cured - The motion judge did not err - See paragraphs 20 and 21.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - An employee was employed by the employer for over 33 years - The employer closed the facility where the employee worked on February 26, 2010 - The employer provided him with the statutory 26 weeks' severance pay pursuant to the Employment Standards Act, accrued vacation pay, and benefits to March 31, 2010 - The employee sued, alleging that the employer failed to provide proper notice or termination pay in lieu thereof, as required by the Act - He also sought common law damages for wrongful dismissal equivalent to 24 months' pay - The employee moved for summary judgment - The motion judge allowed the motion, holding that the employee was entitled to 22 months' notice - The employer appealed, asserting that the employee had received reasonable working notice in light of his employment as a non-managerial employee - The Ontario Court of Appeal dismissed the appeal - The motion judge conducted an appropriately holistic review of the case - She did not give disproportionate weight to any of the factors in Bardal v. Globe & Mail Ltd. (1960, Ont. H.C.) - The employee was 62 years old, had served the company for 33 years and had made unsuccessful inquiries or applications with 22 companies in the area - See paragraphs 22 to 29.

Cases Noticed:

Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 12].

Cronk v. Canadian General Insurance Co. (1995), 85 O.A.C. 54; 128 D.L.R.(4th) 147 (C.A.), refd to. [para. 13].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 168 D.L.R.(4th) 270 (C.A.), refd to. [para. 14].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 20].

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299; 2008 SCC 39, refd to. [para. 26].

Bramble v. Medis Health and Pharmaceutical Services Inc. (1999), 214 N.B.R.(2d) 111; 547 A.P.R. 111; 175 D.L.R.(4th) 385 (C.A.), refd to. [para. 27].

Paulin v. Vibert (2008), 328 N.B.R.(2d) 270; 841 A.P.R. 270; 291 D.L.R.(4th) 302 (C.A.), refd to. [para. 27].

Counsel:

M. Christine O'Donohue, for the appellants;

Peter Cicak and Lior Samfiru, for the respondent.

This appeal was heard on May 20, 2011, by Goudge, MacPherson and Karakatsanis, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by MacPherson, J.A., on June 22, 2011.