Di Tomaso v. Crown Metal Packaging, 2011 ONCA 469

JurisdictionOntario
JudgeGoudge, MacPherson and Karakatsanis, JJ.A.
Neutral Citation2011 ONCA 469
Citation2011 ONCA 469,(2011), 282 O.A.C. 134 (CA),337 DLR (4th) 679,[2011] OJ No 2900 (QL),282 OAC 134,[2011] O.J. No 2900 (QL),337 D.L.R. (4th) 679,(2011), 282 OAC 134 (CA),282 O.A.C. 134
Date20 May 2011
CourtCourt 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.

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33 practice notes
  • Table of Cases
    • Canada
    • Irwin Books Labour and Employment Law. Cases, Materials, and Commentary. Ninth Edition
    • 24 Junio 2018
    ...(Deputy Attorney General), [1999] 2 SCR 989 .................................947, 1130, 1131 Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469 .............................................304 Digby School Board. See Canadian Union of Public Employees v Labour Relations Board (Nova ......
  • Ontario Court Of Appeal Summaries (September 17 – 21, 2018)
    • Canada
    • Mondaq Canada
    • 24 Septiembre 2018
    ...Finishing Inc. v. Abdoulrab, 2009 ONCA 491, Taylor v Dyer Brown (2004), 73 OR (3d) 358, Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469, Wood v Fred Deeley Imports Ltd, 2017 ONCA 158 Facts: This appeal arose from the closure of a manufacturing plant operated by CTS of Canada Co. ......
  • End of the Non-union Employment Relationship
    • Canada
    • Irwin Books Employment and Labour Law Toolbox. What Ontario Employers Need to Know. Second edition
    • 23 Junio 2019
    ...of common law remedies. 19 Gristey v Emke Schaab Climatecare Inc , 2014 ONSC 1798. 20 See Di Tomaso v Crown Metal Packaging Canada LP , 2011 ONCA 469. 21 Markoulakis v SNC-Lavalin Inc , 2015 ONSC 1081. 22 Duong v Linamar Corporation , 2010 ONSC 3159 at para 33. 23 Termination and Severance ......
  • End of the Nonunion Employment Relationship
    • Canada
    • Irwin Books Archive Employment and Labour Law Toolbox. What Ontario Employers Need to Know
    • 30 Agosto 2015
    ...of common law remedies. 19 Gristey v Emke Schaab Climatecare Inc , 2014 ONSC 1798. 20 See Di Tomaso v Crown Metal Packaging Canada LP , 2011 ONCA 469. 21 Markoulakis v SNC-Lavalin Inc , 2015 ONSC 1081. 22 Duong v Linamar Corporation , 2010 ONSC 3159 at para 33. 23 Termination and Severance ......
  • Request a trial to view additional results
25 cases
  • Dilollo (Bankrupt), Re, (2013) 310 O.A.C. 282 (CA)
    • Canada
    • Ontario Court of Appeal (Ontario)
    • 2 Octubre 2013
    ...[1978] 1 S.C.R. 230; 14 N.R. 503, refd to. [para. 12]. Joseph v. Paramount Canada's Wonderland (2008), 241 O.A.C. 29; 90 O.R.(3d) 401; 2011 ONCA 469, refd to. [para. Guillemette v. Doucet (2007), 230 O.A.C. 202; 88 O.R.(3d) 90; 2007 ONCA 743, refd to. [para. 28]. Coulson v. Citigroup Global......
  • Humphrey v. Mene, 2021 ONSC 2539
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 4 Mayo 2021
    ...Inc., 2016 ONSC 1214, Johar v. Best Buy Canada Ltd., 2016 ONSC 5287, Di Tomaso v. Crown Metal Packaging Canada LP, 2010 ONSC 5761, aff’d 2011 ONCA 469. b. Menē initially opposed this matter being decided by way of summary judgment on the basis that the plaintiff was seeking exemplary damage......
  • Pohl v. Hudson’s Bay Company, 2022 ONSC 5230
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 15 Septiembre 2022
    ...Mr. Pohl’s position is described as managerial or supervisory: Russell, at para. 34; Di Tomaso v. Crown Metal Packaging Canada, 2011 ONCA 469, 337 D.L.R. (4th) 679. It is clear that HBC entrusted Mr. Pohl with significant responsibilities and that he fulfilled an essential and integr......
  • Bahrami v. AGS Flexitallic Inc., 2015 ABQB 536
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 5 Agosto 2016
    ...character of a dismissed worker's employment is today a factor of "declining importance": Di Tomaso v Crown Metal Packaging Canada LP , 2011 ONCA 469 at para 27, 337 DLR (4th) 679; Arnone v Best Theratronics Ltd , 2015 ONCA 63 at para 11, 23 CCEL (4th) 148. [28] This Court addressed the Cro......
  • Request a trial to view additional results
3 firm's commentaries
  • Ontario Court Of Appeal Summaries (September 17 – 21, 2018)
    • Canada
    • Mondaq Canada
    • 24 Septiembre 2018
    ...Finishing Inc. v. Abdoulrab, 2009 ONCA 491, Taylor v Dyer Brown (2004), 73 OR (3d) 358, Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469, Wood v Fred Deeley Imports Ltd, 2017 ONCA 158 Facts: This appeal arose from the closure of a manufacturing plant operated by CTS of Canada Co. ......
  • All Notice and No Work Makes 'Working Notice' Null and Void
    • Canada
    • Mondaq Canada
    • 2 Noviembre 2017
    ...as being deserving of less notice than higher skilled and more managerial positions. [1] 2017 ONSC 4073. [2] McLeod, at para 30. [3] 2011 ONCA 469, at paras 23, 27, The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisio......
  • Character Matters: Don't Be So Quick To (Summary) Judge
    • Canada
    • Mondaq Canada
    • 17 Octubre 2017
    ...ONSC 4284. For example, see Adjemian v Brook Crompton North America, (2008) 2008 CarswellOnt 3304 (SC) and Beatty v Best, 2017 ONSC 3376. 2011 ONCA 469. The Bardal factors include: the dismissed employee's age, length of service, character of employment and availability of similar employmen......
5 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Labour and Employment Law. Cases, Materials, and Commentary. Ninth Edition
    • 24 Junio 2018
    ...(Deputy Attorney General), [1999] 2 SCR 989 .................................947, 1130, 1131 Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469 .............................................304 Digby School Board. See Canadian Union of Public Employees v Labour Relations Board (Nova ......
  • End of the Non-union Employment Relationship
    • Canada
    • Irwin Books Employment and Labour Law Toolbox. What Ontario Employers Need to Know. Second edition
    • 23 Junio 2019
    ...of common law remedies. 19 Gristey v Emke Schaab Climatecare Inc , 2014 ONSC 1798. 20 See Di Tomaso v Crown Metal Packaging Canada LP , 2011 ONCA 469. 21 Markoulakis v SNC-Lavalin Inc , 2015 ONSC 1081. 22 Duong v Linamar Corporation , 2010 ONSC 3159 at para 33. 23 Termination and Severance ......
  • End of the Nonunion Employment Relationship
    • Canada
    • Irwin Books Archive Employment and Labour Law Toolbox. What Ontario Employers Need to Know
    • 30 Agosto 2015
    ...of common law remedies. 19 Gristey v Emke Schaab Climatecare Inc , 2014 ONSC 1798. 20 See Di Tomaso v Crown Metal Packaging Canada LP , 2011 ONCA 469. 21 Markoulakis v SNC-Lavalin Inc , 2015 ONSC 1081. 22 Duong v Linamar Corporation , 2010 ONSC 3159 at para 33. 23 Termination and Severance ......
  • The Contract of Employment
    • Canada
    • Irwin Books Labour and Employment Law. Cases, Materials, and Commentary. Ninth Edition
    • 24 Junio 2018
    ...Appeal, when a non-managerial employee of thirty-three years sued for wrongful dismissal in Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469. Justice MacPherson, now sitting on the Court of Appeal, wrote for the court and reiterated that there is no empirical evidence to support a......
  • Request a trial to view additional results

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