Originally published in Blakes Bulletin on Labour &
Employment, June 2011
In its decision in Antonio Di Tomaso and Crown Metal Packaging Canada
LP, released June 22, 2011, the Court of Appeal (the
Court) revisited the importance of "character of
employment" as a factor in determining notice periods and
confirmed that there is no "upper limit" on the notice
periods available to unskilled non-managerial employees.
Mr. Di Tomaso was employed by Crown Metal for over 33 years as a
mechanic and press maintainer. He had no managerial
responsibilities. At the time of the termination of his employment
by Crown Metal in February 2010, Mr. Di Tomaso was 62 years old. He
earned approximately C$31 per hour.
THE "CONFLICTING" DECISIONS
On an application for summary judgment by Mr. Di Tomaso in his
action for wrongful dismissal, the motion judge awarded him 22
months' pay in lieu of notice.
On appeal, the employer argued that, in a prior case decided in
1995, the Court had established an "upper limit" of 12
months on the notice for clerical and unskilled labourers (see Cronk v. Canadian General Insurance Co.). In responding to this argument,
Mr. Di Tomaso's counsel relied on a 1999 decision from the
Court, Minott v. O'Shanter Development Company
Ltd., in which the Court had expressly stated that it
did not regard the Cronk decision as establishing an upper
limit of 12 months' notice for all non-managerial or
non-supervisory employees. Significantly, in that case the Court
"Moreover, the imposition of an arbitrary 12 months ceiling
for all non-managerial employees detracts from the flexibility of
the Bardaltest and restricts the ability of courts to take account
of all factors relevant to each case and of changing social and
THE COURT'S DECISION
In assessing the correctness of the motion judge's decision
in the Di Tomaso case, the Court placed some emphasis on
the language used in two leading employment cases. From the seminal
1960 case on the factors to consider in determining the appropriate
notice period, Bardal v. Globe & Mail Ltd., the Court
relied on the following statement: "There can be no catalogue
laid down as to what is reasonable notice in particular classes of
cases." From the 2008 landmark decision of the Supreme Court
of Canada, Honda Canada Inc. v. Keays, the Court
highlighted: "no one Bardal factor should be given
The Court also cited with approval some decisions from the New
Brunswick Court of Appeal that stand for the proposition that the
character of employment (i.e., whether the employee was in a senior
managerial position or was an unskilled labourer) is "a factor
of declining relative importance." The Court went on to say
that this is particularly so if an employer attempts to use
character of employment to assert that low-level, unskilled
employees deserve less notice because they have an easier time
finding alternate employment. In Di Tomaso,the Court
concluded that "the empirical validity of that proposition
cannot simply be taken for granted, particularly in today's
In the result, the appellate court declined to interfere with
the motion court judge's award of 22 months' notice to Mr.
Di Tomaso, notwithstanding that it agreed that the 22 months
awarded by the motion judge to Mr. Di Tomaso was at the upper end
of the range of notice appropriate for a similarly situated
It is noteworthy that Mr. Di Tomaso's termination of
employment occurred on February 26, 2010 and the summary judgment
motion occurred on October 19, 2010, a mere eight months into the
notice period, and that a trust was imposed on the award requiring
Mr. Di Tomaso to account for any mitigating earnings.
As in its previous decision in Minott, the Ontario
Court of Appeal has once again rejected efforts to undermine the
flexibility of the Bardal test or to embrace an approach
to assessing notice periods that would give unnecessary prominence
to one of several factors. So, while upper limits and "rules
of thumb" would make estimating notice periods easier, the
Court's emphasis on flexibility remains true to the spirit of
the iconic Bardal decision and the underlying purpose of
reasonable notice, which is to provide a terminated employee
sufficient time to find comparable employment, having regard to
that employee's circumstances and the specific facts of the
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