Thursday, May 14, 2015

Best Theratronics Loses Its Appeals

Over the last several months, I've discussed several wrongful dismissal cases involving Best Theratronics, including the Court of Appeal's decision in Arnone v. Best Theratronics earlier this year.

Two more appellate decisions have recently been released, in Vist v. Best Theratronics and Beatty v. Best Theratronics.


This was a decision I discussed last June, dealing with interesting questions surrounding the treatment of non-continuous service periods for the purpose of determining the length of the reasonable notice period.

In my discussion, I expressed some reticence about the ultimate decision:  On these facts, it seemed to me that it was a Boolean question of "Was there an agreement to recognize the employee's previous years of service?"  If yes, they get recognized.  If not, then probably not.  And this was an ambiguous question which could have gone either way.  But instead Justice Blishen took a compromise approach, purporting to not regard the years of service cumulatively, while nonetheless giving "some credit" for them.  Even then, it's not clear what credit she gave, because she only awarded 6 months, which I regarded as being "within or near" the reasonable range under the circumstances.

The Divisional Court's discussion is very interesting.  The employer appealed on three grounds:

  1. that the treatment of the previous years of service was wrong, and Vist shouldn't have gotten any credit for them;
  2. that Vist failed to mitigate his damages by looking for lower-level employment instead of employment at the same senior level he had previously occupied;
  3. that the plaintiff should have been denied costs, because his award was ultimately within the Small Claims Court jurisdiction, after considering mitigation earnings - $24,924.29, which is $75.71 short of the maximum claim in Small Claims Court.  (The judge awarded 'partial indemnity' costs in the amount of $23,000.)

On the first issue, the Court accepted that the ambiguity of the contract permitted an interpretation to give 'some credit' to the employee for the additional years of service, but highlights that in any event it's clear that the judge did not give full credit - because if she had, the notice period would have been 2 to 3 times what it was.  Assuming a 2.5 year employee under the circumstances, the Divisional Court regarded the reasonable notice period as being in a range from 3-6 months, and therefore the judge's award was within the range.

On the second issue, the Court was critical of the employer for even pursuing it:  Vist successfully mitigated, at a lower level, fairly quickly, and the employer received the benefit of that.  Had he been seeking a higher-level position, it presumably would have taken him significantly longer to find it, generating a greater cost to the employer.

And on the third issue, the trial judge did err slightly:  She concluded that the award actually exceeded the Small Claims Court jurisdiction, including interest, thus improperly denying herself the discretion to deny costs.  However, under all the circumstances, given that she nonetheless awarded costs on a scale that rivalled the judgment itself, the Divisional Court felt that it was "pretty clear" which way her discretion would have gone, so it was pointless to remit the matter back to her.


My original commentary on the Beatty case focused on the application of the new summary judgment rules to a fairly common employment law scenario:  Where there's a simple wrongful dismissal claim with a side claim for bad faith damages, it may be easy to resolve questions like liability for reasonable notice on summary judgment, yet more complicated in some cases to address entitlements to moral damages.  In Beatty, Justice Hackland determined that he could determine some of the issues, but referred the moral damage issues to a summary trial.

Best Theratronics appealed on two issues:  Firstly, it claimed that Justice Hackland erred in his assessment of the reasonable notice period; secondly, it argued that Justice Hackland erred in finding that the plaintiff had taken reasonable steps in mitigation.

These arguments both have two facets:  On the one hand, they're saying "Justice Hackland made the wrong decision; he should have ruled this way instead"; on the other hand, they're arguing "Justice Hackland lacked the evidentiary basis to find the way he did, and should have at least ordered a trial on the issue."

The Court of Appeal rejected all the employer's arguments.

Notice Period

The employer argued that Justice Hackland had erred by applying the "rule of thumb" approach of one month per year of service, awarding 16 months for 16 years of service.  The Court of Appeal expressly rejected such a "rule of thumb" approach in 1999.

There is a slightly concerning passage in Justice Hackland's decision to this end:
 The plaintiff’s submission is that he is entitled to 16 months’ notice, being a fairly standard one month per year of employment calculation based on a consideration and balancing of all of the recognized factors set out in Bardal v. Globe and Mail (1960), 24 D.L.R. (2d) 140.
Still, the Court of Appeal rejected the notion that 'one month per year of service' is how Justice Hackland came to this answer.  He referred to the appropriate principles, and to comparable case law, in assessing this figure.  He referred to the employer's submission - that 12 weeks was sufficient - as "remarkable", having "no real rationale".  (My read of Justice Hackland's language is that the "fairly standard" language contrasted the plaintiff's submission - which appeared to be in the ballpark - to the defendant's submission...which didn't.)


The employer argued that the defendant had failed to mitigate, because his efforts at a job hunt were inadequate.  The employer put forward a number of positions that were available, but for which the plaintiff had not applied; Justice Hackland found that these jobs were not such that the plaintiff would have been required to apply (because they were not comparable to the job he had before), and therefore the employer had not satisfied its onus of proving a failure to mitigate.  The Court of Appeal agreed with the assessment.

Availability of Summary Judgment

This is kind of the most important, but simplest, aspect of the decision:
This is a case where it was manifestly fair and just for the motion judge to determine the issues he did in a summary manner. The motion judge had a full evidentiary record. The parties filed affidavits, and the respondent was cross-examined. There were no real credibility or even factual issues relevant to the period of reasonable notice and mitigation.
It is increasingly appearing that motions for summary judgment will be very common in wrongful dismissal matters, moving forward.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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