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.
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
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.
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
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
In an earlierblog posting, we predicted that the Supreme
Court's new, broader test for summary judgment set out in
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
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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