Canada: Is "Bridging" An Employee To Retirement A Relevant Factor In Assessing Reasonable Notice? Court Of Appeal Weighs In

The Ontario Court of Appeal recently released its decision in Matthew Arnone v. Best Theratronics Ltd. (Arnone), finding that in the case of the dismissal of a long service employee, it was not appropriate to take into account the period of time required to "bridge" the employee from his termination date to the date he became entitled to an unreduced pension on retirement.

Background

Mr. Arnone was a 31 year employee of Best Theratronics and was 53 years old at the time his employment was terminated.  He was earning $95,000 annually and was 16.8 months away from the date he would become entitled to a full, unreduced pension on retirement. Mr. Arnone's employment was terminated due to a restructuring and he was provided 14.4 weeks' reasonable notice in accordance with his minimum entitlements under the Canada Labour Code.

Mr. Arnone subsequently commenced an action for wrongful dismissal and moved for summary judgment. This motion was granted and Mr. Arnone was found to be entitled to a reasonable notice period equal to 16.8 months, the period of time needed to bridge his entitlement to a full pension.  The motion judge held in the alternative that in the absence of the availability of the unreduced pension, he would have found a notice period of 22 months to be reasonable in the circumstances.

The Appeal

Best Theratronics appealed the lower court decision, arguing that the motion judge erred in granting summary judgment because there was a genuine issue requiring a trial in respect of the character of Mr. Arnone's employment. Mr. Arnone cross-appealed, arguing, among other things, that the motion judge erred by taking into account the timing of Mr. Arnone's eligibility for an unreduced pension as a relevant factor in its assessment of the reasonable notice period (i.e. the Bardal analysis).

The Court of Appeal found that the motion's judge's conclusion that there was no genuine issue for trial was supported by his findings on the character of Mr. Arnone's employment.  The Court of Appeal noted that these findings were made based on an extensive and reliable documentary record which included cross-examinations on the affidavits filed. Taking the above into account and reflecting on the totality of the issues in the case, Justice Brown, writing for the Court of Appeal, noted "a straight-forward claim for wrongful dismissal without cause, such as the present one, strikes me as the type of case usually amenable to a Rule 20 summary judgment motion."

With regard to the "bridging" issue, the Court of Appeal found that while the motion judge correctly referred to the Bardal factors as the starting point for the assessment of the appropriate reasonable notice period, applying a "bridging" approach to this analysis was in error. The alternative 22 month notice period put forward by the motion judge was found by the Court of Appeal to fall within an acceptable range of notice periods for employees in circumstances similar to those of Mr. Arnone and was therefore substituted for the original 16.8 month order.    

Our Views

In an earlier blog posting, we predicted that the Supreme Court's new, broader test for summary judgment set out in Hryniak v. Mauldin would open the door to an increase in summary judgment motions in employment law cases. Arnone provides a useful example of the type of case that will be considered sufficiently straight-forward to be appropriate for summary judgment following this evolution in the jurisprudence.

Arnone also serves as a precedent for cases involving employees close to retirement age with pension entitlements. In such cases, the Court of Appeal has made clear that the courts must continue to apply the Bardal approach to determine what constitutes reasonable notice of termination. The factors in this analysis, however, do not include a consideration of the time between the date of dismissal and the point at which the employee would be eligible for a pension so as to allow for "bridging" between these two dates. 

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