An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Sunday, 8 June 2014

Wrongful Dismissal First Principles Affirmed by ONCA

How much weight are judges to give other wrongful dismissal decisions? According to a recent decision from the Court of Appeal for Ontario, while other decisions from the same level of court can be persuasive, they are not binding. The principle of stare decisis requires that courts render decisions that are consistent with the previous decisions of higher courts.

Facts

In its short endorsement in the case of Kotecha v. Affinia Canada ULC, 2014 ONCA 411, the Court of Appeal for Ontario affirmed not only the principles of stare decisis but also the basic principles of determining the appropriate amount of reasonable notice due to terminated employees.

The plaintiff employee, who worked for 20 years for his employer, commenced a simplified proceeding arising out of the termination of his employment. The primary issue in the case was the appropriate length of notice. The motion judge granted the employee’s motion for summary judgment and awarded 22 months’ pay in lieu of notice, in addition to the 11 weeks of working notice provided.

On appeal, the employer argued that the motion judge erred in disregarding the unreported judgment of Taylor J. of the Superior Court in Sharma v. Affinia Canada and noted that on almost identical facts, the motion judge in that case awarded only 13 months’ reasonable notice. According to the employer, the motion judge was bound by the doctrine by stare decisis to award a similar period of reasonable notice in this case.

The Court of Appeal for Ontario disagreed.

Decision of the Court of Appeal for Ontario

In rejecting the employer’s argument that the judge hearing the case was obligated to follow an earlier decision of the same court, the Court of Appeal said the following:

We reject this ground of appeal. The principle of stare decisis requires that courts render decisions that are consistent with the previous decisions of higher courts: Bedford v. Canada, 2012 ONCA 186 (CanLII), at para. 56. While other decisions of the Superior Court are persuasive, they are not binding as the appellant seems to suggest. Moreover, the determination of the appropriate notice period is a very fact-specific exercise and is calculated in accordance with numerous factors as set out in Bardal v. Globe and Mail Ltd., [1960] O.J. No. 149, [1960 OWN 253] being the character of employment, the length of service, the age of the employee and the availability of other similar employment.

For what it’s worth, the Court of Appeal did find that 24 months notice was too much and reduced the award to 18 months notice.

Commentary

The case is important for its simplicity. It is kind of remarkable that over fifty years later the decision in the case of Bardal remains the go-to source for employment lawyers in Ontario.

If you’ll indulge me a personal moment, I’ll confess, perhaps boast, that I have an original version from 1960 of the Ontario Weekly Notes (“OWN”) on my shelf in which the Bardal decision appears, which is the photo appearing at the top of this post. It’s a small point of pride.

Takeaways for those with Labour Pains

If there is anything to be taken away from the decision in Kotecha, it is that, as the Court of Appeal noted, no two cases are ever the same. Determining reasonable notice is much more of an art than a science. And, while other cases can provide guidance, they cannot always be followed to the letter.

If you are an employee with Labour Pains and are looking for assistance with determining the amount of reasonable notice to which you may be entitled following the termination of your employment, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

If you are an employer with Labour Pains and are looking for assistance with determining the amount of reasonable notice to provide to an employee that you may have to dismiss, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



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