In the recent decision, Kotecha v. Affinia Canada ULC, the Ontario
Court of Appeal provided a useful reminder that trial level
decisions are not binding. The original decision came by way of a
motion for summary judgment and awarded a terminated employee 22
months of pay in lieu of notice in addition to the 11 weeks of
working notice provided. The defendant appealed to the Ontario
Court of Appeal stating the motion's judge failed to apply the
principle of stare decisis and follow the decision by
Justice Taylor in Sharma v. Affinia Canada (unreported).
Under an allegedly very similar fact scenario, Taylor J. awarded an
employee 13 months' pay in lieu of notice.
The Ontario Court of Appeal rejected the stare decisis
argument. As stated in a previous appellate decision, the principle
of stare decisis is to ensure court decisions are
consistent with higher court decisions. Therefore,
Superior Court judges and other trial level courts are bound to
apply the decisions of the Ontario Court of Appeal and Supreme
Court. However the Superior Court judges, while they may be
persuaded by similarly seated judges, are not bound to follow each
other. Furthermore, wrongful dismissal notice periods require a
fact-specific analysis. In this instance the plaintiff was 8 years
older with 4 additional years of service compared to the plaintiff
in the Sharma case.
Ultimately the Court of Appeal did allow the appeal and reduced
the notice period from 22 months to 18 based on an application of
the often cited Bardal factors. The employee
("Kotecha") was employed for 20 years as a machine
operator and was 70 years old at the time of the summary judgment.
Kotecha was not granted a single interview through his job search
and the motions judge took note of his advanced age and the poor
economy with respect to his lack of success. Based on these factors
the initial award was found to be excessive and the factual matrix
lacked any exceptional circumstances to justify the award.
Interestingly, the Court of Appeal did note that courts should
strive for consistency when determining the appropriate notice
period. However, the consistency is in relation to case law as a
whole rather than blindly following any one particular case.
Determining the appropriate notice period for an employee is a
fact-specific and difficult exercise. If you are an employer faced
with the tough decision to terminate an employee, you should seek
legal advice. The lawyers at CC Partners have a wealth of
experience with respect to an employer's obligations when
terminating an employment relationship. We can assist you in
determining the appropriate notice period as part of an employment
agreement or termination letter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
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