Sunday, 17 June 2012

Character Comes with Age

Recently a question was posed to me (amongst others) on Twitter as to whether Justice Roberts’ decision in Hussain v. Suzuki, summarized in an earlier blog post here, signalled a recognition by the Ontario court that older workers required a greater notice period.

Although I have twice written on the subject, once concerning the decision in Hussein and the other on Justice Lederer’s decision in Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 (summarized here), as I contemplate these decisions further I have come to the conclusion that neither decision signals a true departure from any established norm, notwithstanding Justice Roberts’s decision to award Mr. Hussain 26 months’ notice.


The Age-Old Question… 'Old-Age' question rather


Without question, the age of a dismissed employee is one consideration for the court in determining the amount of notice to which he is entitled (Bardal v. Globe & Mail).  However, what is equally without question is that no one factor – including the employee’s age – is to be supposed to be determinative of the issue.  As I argue below, I believe same not necessarily to be as true as some may like.

On this point a reading of Justice Macpherson’s (as he then was) reasons for decision in Cronk v. Canadian General Insurance Co., 1994 CanLII 7293 (Ont. Ct. (Gen. Div.)) is quite illuminating; as is the Court of Appeal’s decision reversing that decision.

Reading Justice Macpherson’s reasons for decision today it is easy to see how the more things change the more things stay the same.  In Cronk, the dismissed employee, Edna Cronk, was 55 years old at the time of dismissal.  She had worked for her employer for 29 years.

Justice Macpherson’s reasons for decision start in such a way as to perhaps signal to the reader the way in which his decision will end:

[1]  Every year in Ontario good and loyal workers lose their jobs through no fault of their own. Companies die or get smaller or make changes. Almost inevitably, the waves that wash over a company and bring these changes are accompanied by a powerful undertow that drags down some of the employees of the company.

[2]  In 1993 Edna Cronk got caught in the undertow. She lost her job at a major Canadian insurance company when it made substantial organizational changes. Edna Cronk did nothing to cause the termination of her employment; she was simply dismissed after long years of service. In her world she joined the long ranks of the unemployed. In the legal world she joined the long ranks of plaintiffs in cases bearing the bland rubric “Wrongful Dismissal”.

On the issue of Edna Cronk’s age, Justice Macpherson commented that 55 was “a particularly vulnerable age for an employee.”  Adding, “she is probably too old to embark upon a lengthy or strenuous retraining programme.”  (See para. 20.)  No doubt this factor weighed somewhat heavily on Justice Macpherson’s decision as it did for Justice Roberts in Hussain.

Ms. Cellophane


Critical for Justice Macpherson (and more to the point, the Court of Appeal) was the fact that Edna Cronk did not hold a managerial position; she was a clerk.  Borrowing from the musical Chicago, I would submit Edna Cronk was Ms. Cellophane: one could look right through her, walk right by her, and never know she was there.  Said Justice Macpherson,

She was not a highly visible and renowned employee occupying a senior management position. Viewed from an external perspective, she was in fact an invisible, unknown and junior employee—a small cog in a large corporate enterprise.  (Para. 8.)

Rejecting the common approach that ‘lower-level employees’ such as Edna Cronk are entitled to less notice than managerial positions Justice Macpherson commented that:

The reality is—as we are all told by our parents at a young age—that education and training are directly related to employment. The senior manager and the professional person are better, not worse, positioned to obtain employment, both initially and later in a post‑dismissal context. Higher education and specialized training correlate directly with increased access to employment. (Para. 42.  Emphasis in original.)

The Result at Trial


The result at trial was that Ms. Cronk was awarded damages in lieu of notice equivalent to 20 months’ salary.

All other factors considered, Ms. Cronk’s age must have been a critical factor for the amount of notice that she received.  To those wanting for court recognition that older workers require longer notice periods this decision would serve that purpose.

The Court of Appeal for Ontario


On appeal to the Court of Appeal for Ontario, however, (reasons for decision at: Cronk v. Canadian General Insurance Co., 1995 CanLII 814 (Ont. C.A.)) Ms. Cronk did not fair as well.

Very much uncommonly, each of the three justices hearing the case (Morden A.C.J.O., Lacourcière and Weiler JJ.A.) wrote an opinion.

Lacourcière J.A.


Although it is often repeated that no one of the four factors set out in the Bardal is to be determinative, Lacourcière J.A. relied heavily on the issue of “character of employment” in determining that the appeal must be allowed and the award reduced.

Writing first in the decision, Justice Lacourcière held that Justice Macpherson had erred in departing from the well-recognized principle that employees that enjoy greater responsibility in their positions are entitled to a greater notice period.  In reaching his decision Justice Lacourcière cited a British Columbia decision, Ansari v. British Columbia Hydro and Power Authority1986 CanLII 1023 (BC SC), where McEachern C.J.B.C.S.C. had written that:

At the end of the day the question really comes down to what is objectively reasonable in the variable circumstances of each case, but I repeat that the most important factors are the responsibility of the employment function, age, length of service and the availability of equivalent alternative employment, but not necessarily in that order.

In reducing Ms. Cronk’s award from 20 months to 12, Justice Lacourcière held that, “In my opinion, the character of the employment of the respondent does not entitle her to a lengthy period of notice.”

In a brief, concurring opinion, Morden A.C.J.O. essentially agreed.  Nothing further with respect to Associate Chief Justice Morden’s reasons will be considered in this post.

Weiler J.A.


Although Justice Weiler agreed that the appeal should be allowed, she disagreed with the critical point in Justice Lacourcière’s reasons for decision, writing:

Lacourcière J.A. is of the opinion that a clerical employee should be entitled to a category or range of notice which is less than that for an employee who exercises management or executive functions. He has accepted the appellant's argument that this is "A principle of law." I cannot agree that the application of the four factors in Bardal, requires this result.  [Emphasis added.]

Justice Weiler later added, (quite correctly in my humble opinion), that:

By singling out character of employment, which is one of the factors comprising the legal standard articulated in Bardal, supra, and holding that the upper limit of notice for clerical employees must always be less than the upper limit for executives, the appellant is asking the court to sanction a limitation period with a scale that should be adjusted downward when applied to clerical employees.  Acceptance of this argument gives undue weight to character of employment instead of permitting all the factors to be weighed.  [Emphasis added.]

Finally, after a careful analysis of the reasons for providing notice of dismissal to employees and several decisions interpreting and applying Bardal, including Ansari, Justice Weiler held as follows:

If the prospects of re-employment for both the clerical employee and the management executive are generally equally bleak when they are 55 and have given long years of service to the same employer, then, in the absence of any other valid reason for doing so, we ought not to weigh them differently.

Again, for those wanting for protection of older employees, the above reasoning is welcomed.  It also, in my opinion, makes complete sense.

Hussain and Rubin


At the outset of this post I wrote that neither the decision in Hussain nor Rubin signalled a true departure from the norm.  I say this on account of the difference in awards the two dismissed employees received and the different positions that they held.

One must recall that while Mr. Hussain was awarded 26 months’ notice, Mr. Rubin was awarded 12.  Both were long-term employees of advanced age.  The difference between the two, it is submitted, is that while Mr. Hussain was a supervisor, Mr. Rubin was not.

Commentary


My sense is that Justices Weiler and Macpherson were correct; older employees, regardless of the position that they held at the time of dismissal, require a greater amount of notice.  Justice Roberts appeared to agree in Hussain. 

More to the point, however, I agree with Justice Weiler that if no one factor of the Bardal analysis is to be determinative, then one cannot place a ‘cap’ on the amount of damages that an employee can receive simply by virtue of her “character of employment.” 

It is unknown to me whether either Hussain or Rubin will be appealed.  What the Court of Appeal for Ontario would do with either decision is of course also to be seen.

However, I would submit that the Supreme Court of Canada’s decision in Honda Canada Inc. v. Keays, 2008 SCC 39 rejecting the ‘Wallace bump’ approach to aggravated damages signals, at least on one level, a movement towards greater equality amongst the ranks of employment.  And that, I would finally submit, is also a good thing – especially for those in the lower ranks.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer. 

3 comments:

  1. One supposes that my point is that while Mr. Hussain’s award is one thing, what would have been more surprising would have been if Eric Rubin would have been awarded 26 months.

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  2. To be fair, while they were both long-term employees, Mr. Hussain still had close to double the length of service that Mr. Rubin had. 19 years of service is a lot, but 36 years? That's just something else entirely.

    All that being said, I'm inclined to agree that the difference is a little large, and while Mr. Hussain's notice period was obviously quite generous, I think Mr. Rubin's notice period was a tad on the skinny side...and we're going to see a fair bit of unpredictability there for a while.

    Justice Weiler's concerns about the 12-month "cap" were echoed in Minott v. O'Shanter in 1999, where the Court of Appeal clarified that Cronk didn't establish a hard ceiling. Yet the result was still something of a soft ceiling, like the 24-month overall ceiling for notice periods - it was hard to get past, and impossible to get much past. (In Minott itself, the Court of Appeal upheld an award of a 13-month notice period to a non-supervisory unskilled labourer who was 43 years old with 11 years of service...compare *that* one to Mr. Rubin.)

    But Cronk no longer appears to be good law at all. Last year, the Court of Appeal decided Di Tomaso v. Crown Metal, upholding a 22-month notice period for a 62-year-old unskilled labourer with 33 years of service. In doing so, the Court rejected the argument that Cronk established an upper limit, and reopened the door to the critique of the "character of employment" that Justice MacPherson made in Cronk. (Unsurprising, perhaps, given the authorship of the decision.)

    "This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply be taken for granted, particularly in today’s world."

    Net result: 16 years of "reasonable notice" jurisprudence for clerical/unskilled employees, based on a severely-depressed scale arising from Cronk, are gone out the window. It may take some time, and a fair bit of appellate intervention, before we can start to expect to see consistency again.

    (The other thing that we may yet see raise its head is the observation made in Justice Morden's concurring reasons from Cronk: If you start to see character of employment as being of reduced importance [as Di Tomaso says is the case today], it might make more sense to scale back managerial and executive notice periods.)

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    Replies
    1. Dennis,

      Thank you for your most excellent comments.

      I certainly agree with what you are saying and agree that if character of employment is going to be of reduced importance, then short-term executive positions may receive less notice; and I am not necessarily disagreeing with that as a bad thing.

      As I mentioned, I think Honda signals from the Court an attempt to try and level the playing field, somewhat, when it comes to employment law.

      However, another interesting factor will be the effect of boomers. Will the courts be inclined to change the balance of Bardal to give age more importance as boomers begin to get handed their walking papers? To be seen one supposes.

      Thanks for reading and posting.

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