The decision to take a wrongful dismissal matter to trial is one that employers should not make lightly. That goes doubly for pursuing an appeal, since the threshold for overturning decisions of the lower courts is usually a significant one. In other words, winning appeals is hard in even the best circumstances. Unfortunately, it appears that this lesson was learned firsthand by the employer in the Ontario Court of Appeal's decision in Pavlov v. The New Zealand and Australian Lamb Company Limited.
In the original trial decision, Justice Stewart of the Superior Court of Justice found that the plaintiff, a 3-year employee, was entitled to 10 months' reasonable notice after his without-cause dismissal on May 28, 2020. Among her reasons for so finding, notwithstanding his relatively short service with the subject employer, she included:
- [para 6, trial decision] An acceptance of the plaintiff's characterization of the circumstances that led him to leave comparatively secure employment with an established large multi-national corporation;
- [para 7, trial decision] The finding that, while he was neither a corporate director nor an officer of the defendant, his duties were significant ones within this organization of approximately 125 employees and that his position of Director of Marketing and Communication was a comparatively senior and important position within the company;
- [para 16, trial decision] An acknowledgement that, "at the time of Pavlov's dismissal, the initial effects of the global pandemic were being experienced by industries of all sorts..." making it "...a reasonable inference to draw from the evidence and the timing of the dismissal that the effects and uncertainties of the pandemic were obstacles to Pavlov's efforts to obtain alternate employment. These obstacles would, or should, have been known to NZAL Co. at the time of Pavlov's dismissal."
Where the lower courts make findings of "mixed fact and law", they are entitled to deference, meaning that the Court of Appeal was only going to overturn the lower court's decision if they determined the trial judge had made "a palpable or overriding error". In its relatively short decision dismissing the appeal, the Court of Appeal bluntly rejected any suggest of error, stating at paragraph 16:
We see no merit in the appellant's main arguments on appeal. The aspects of the trial judge's decision challenged by the appellant were all findings of mixed fact and law entitled to deference. The appellant has raised no palpable or overriding error (or error of any kind) in relation to the trial judge's analysis or conclusions.
While the trial decision itself would doubtless stick in the craw of any employer – 10 months for a 3-year employee is definitely on the high side – in this instance the trial judge's decision included substantive findings as to why the facts suggested a higher award. This is something that must be assessed by employers and their counsel before any trial is appealed: what are the reasons and what is the threshold of "error" required to get the decision overturned? While there are certainly times to carry on the fight, heedlessly pursuing an appeal can end up being quite costly: in this case the Court of Appeal awarded an additional sum of $24,000 to the plaintiff, after he was awarded $50,000 in costs at trial. Make sure to talk to the team at CCPartners any time you are faced with litigation: we will not only help you determine the best approach, but also make sure you don't end up "throwing good money after bad" at any stage of the proceedings.
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