Kieran v. Ingram Micro Inc., (2004) 189 O.A.C. 58 (CA)

• Judge: Charron, Feldman and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 07, 2004
• Jurisdiction: Ontario
• Citations: (2004), 189 O.A.C. 58 (CA)

Kieran v. Ingram Micro Inc. (2004), 189 O.A.C. 58 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JL.025

Andrew Kieran (appellant/plaintiff) v. Ingram Micro Inc. (respondent/defendant)

(C37395)

Indexed As: Kieran v. Ingram Micro Inc.

Ontario Court of Appeal

Charron, Feldman and Lang, JJ.A.

July 26, 2004.

Summary:

The plaintiff sued the defendant for wrongful dismissal.

The Ontario Superior Court, in a decision reported at [2001] O.T.C. Uned. B27, dismissed the action. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal. Although the court found that the plaintiff was wrongfully dismissed, the plaintiff proved no damages.

Master and Servant - Topic 7614

Dismissal of employees - Defences - Resignation of employee - Kieran was employed as a senior vice president, purchasing, of Ingram Micro Inc. (IMI) - When Kieran was told that a rival, and not he, might be made president of IMI, Kieran made statements that he could not work with the rival, and that, in those circumstances, he would require a transfer to a company abroad, or he would leave IMI - IMI appointed the rival as president - Kieran told IMI that he was committed to staying with IMI and said he would give the rival his support - IMI purported to accept Kieran's resignation - Kieran sued for wrongful dismissal - The Ontario Court of Appeal held that, viewing Kieran's statements contextually, he did not resign, and would not have been seen by a reasonable person to have done so - A resignation had to be clear and unequivocal - See paragraphs 26 to 33.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - Kieran was employed as a senior vice president, purchasing, of Ingram Micro Inc. (IMI) - When Kieran was told that a rival, and not he, might be made president of IMI, Kieran made statements that he could not work with the rival, and that, in those circumstances, he would require a transfer to a company abroad, or he would leave IMI - IMI appointed the rival as president - Kieran told IMI that he was committed to staying with IMI and said he would give the rival his support - IMI offered and Kieran refused a transfer to another company at a reduced salary - IMI purported to accept Kieran's resignation - Kieran sued for wrongful dismissal - He had been employed almost eight years and was earning over $200,000 annually - He had a BA in economics - Considering his age (36), seniority and marketability, the trial judge set nine months as the appropriate period of notice and found no aggravating circumstances that would extend the notice period - The Ontario Court of Appeal held that, in the circumstances, including Kieran's age and the availability of employment in his industry, nine months was not outside the acceptable range of reasonable notice - The court declined to interfere with the finding that there were no aggravating circumstances justifying an extension of the notice period - See paragraphs 35 to 42.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting (incl. bad faith) - [See Master and Servant - Topic 8000 ].

Master and Servant - Topic 8074

Dismissal without cause - Damages - Stock options - Kieran was employed in the technology industry as a senior vice president, purchasing, of Ingram Micro Inc. (IMI) until June 12, 1997, when IMI accept Kieran's alleged resignation - Kieran sued IMI for wrongful dismissal - Under IMI's stock option plans, Kieran held options that would have vested from June 30, 1997 to June 30, 1998 - Assuming a notice period of thirteen months, these plans would have given Kieran significant financial gains if the options were exercisable during the notice period - The Ontario Court of Appeal held that the stock options plans were not ambiguous - Keiran's employment terminated on the date he ceased to perform services, without regard to whether he continued to receive compensatory payments or salary in lieu of notice - Therefore, Kieran's right to exercise those options was not extended by the period of reasonable notice - See paragraphs 45 to 61.

Cases Noticed:

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. 16].

Skidd v. Canada Post Corp., [1993] O.J. No. 446 (Gen. Div.), affd. [1997] O.J. No. 712 (C.A.), refd to. [para. 27].

Moore v. University of Western Ontario (1985), 8 C.C.E.L. 157 (Ont. H.C.), refd to. [para. 28].

Mitchell v. Westburne Industrial Enterprises Ltd. (2000), 260 A.R. 38; 2 C.C.E.L.(3d) 87 (Q.B.), refd to. [para. 28].

Tolman v. Gearmatic Co. et al. (1986), 14 C.C.E.L. 195 (B.C.C.A.), refd to. [para. 34].

Montague v. Bank of Nova Scotia (2004), 69 O.R.(3d) 97 (C.A.), refd to. [para. 36].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 42 O.R.(3d) 321 (C.A.), refd to. [para. 36].

Bardal v. Globe and Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 37].

Johnston v. Household Financial Corp. (1997), 30 O.T.C. 280; 30 C.C.E.L.(2d) 33 (Gen. Div.), refd to. [para. 39].

Walsh v. Alberta and Southern Gas Co. and Alberta Natural Gas Co. (1991), 121 A.R. 341; 41 C.C.E.L. 145 (Q.B.), refd to. [para. 39].

Mifsud v. MacMillan Bathurst Inc. (1989), 35 O.A.C. 356; 70 O.R.(2d) 701 (C.A.), leave to appeal refused (1990), 113 N.R. 400; 39 O.A.C. 153; 73 O.R.(2d) x (S.C.C.), refd to. [para. 43].

Gryba v. Moneta Porcupine Mines Ltd. (2000), 139 O.A.C. 40 (C.A.), refd to. [para. 56].

Brock v. Matthews Group Ltd. (1991), 43 O.A.C. 369 (C.A.), refd to. [para. 56].

Schumacher v. Toronto Dominion Bank (1997), 30 O.T.C. 172; 29 C.C.E.L.(2d) 96 (Gen. Div.), refd to. [para. 58].

Counsel:

Brian A. Grosman, Q.C., and Mark Fletcher, for the appellant;

Michael Donsky and Myriah Graves, for the respondent.

This appeal was heard on June 7, 2004, before Charron, Feldman and Lang, JJ.A., of the Ontario Court of Appeal. Lang, J.A., delivered the following judgment on July 26, 2004.