Top 5 Civil Appeals From The Court Of Appeal (March 2015)

There is no shortage of interesting legal issues in the headlines in Canada, from the new legislation about terrorism and mandatory life sentences to which judges from Québec are qualified to sit on the Supreme Court of Canada. While these issues are being determined, the Court of Appeal was busy in February, releasing numerous decisions. This month's netletter summarizes important Court of Appeal decisions involving reasonable notice, an arbitrator's jurisdiction, the onus of proof in rear-end collisions and the use of surveillance evidence at trial, privacy class actions involving medical records and striking jury notices.

​1. Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (Strathy C.J.O., Laskin and Brown JJ.A.), February 2, 2015

2. Ciano Trading & Services C.T. v. Skylink Aviation Inc., 2015 ONCA 89 (MacFarland, Hourigan and Benotto JJ.A.), February 9, 2015

3. Iannarella v. Corbett, 2015 ONCA 110 (Laskin, Lauwers and Hourigan JJ.A.), February 17, 2015

4. Hopkins v. Kay, 2015 ONCA 112 (Sharpe, van Rensburg and Pardu JJ.A.), February 18, 2015

5. Kempf v. Nguyen, 2015 ONCA 114 (Laskin, Rouleau and Epstein JJ.A.), February 18, 2015

1. Arnone v. Best Theratronics Ltd., 2015 ONCA 63 (Strathy C.J.O., Laskin and Brown JJ.A.), February 2, 2015

   Matthew Arnone had worked with Best Theratronics Ltd. for more than thirty years when the company terminated his employment without cause. He sued for wrongful dismissal. On a motion for summary judgment, the motion judge ordered that Best pay Arnone damages equal to the gross amount of the salary he would have earned until he qualified for an unreduced pension as well as value of the loss of an unreduced pension and a retirement allowance.

   On appeal, Best argued that a genuine issue requiring a trial existed regarding the character of Arnone's employment, one of the factors guiding the calculation of the period of reasonable notice under common law pursuant to Bardal v. The Globe and Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.). Writing for the Court, Brown J.A. rejected Best's submission that the motion judge disregarded conflicting evidence about Arnone's duties and responsibilities prior to the termination of his employment. Unlike in Thorne v. Hudson's Bay Co., 2011 ONSC 6010, on which the appellant relied, Arnone had accepted Best's characterization of his employment as supervisory for the purposes of the motion. As well, the motion judge had access to an "extensive and reliable" record, which included the cross-examinations of the affiants, to assist him in deciding whether he could make the necessary findings to determine the issues fairly without a trial.

   Brown J.A. noted that recent case law on the Bardal factors suggests that the character of employment is of "declining importance" in the determination of the period of reasonable notice. In any event, the motion judge's findings about the character of Arnone's employment supported his conclusion that no genuine issue requiring a trial existed on that issue. Brown J.A. agreed with the motion judge that cases involving the determination of a reasonable notice period are generally amenable to a summary judgment motion.

   Best submitted that the motion judge erred in calculating the common law period of reasonable notice to which Arnone was entitled. Brown J.A. agreed, observing that while the motion judge correctly referred to the Bardal factors as the starting point for his assessment, he then departed from the Bardal analysis by "bridging" the notice period to the date on which Arnone would have been entitled to an unreduced pension. The Bardal analysis, which is the prevailing approach to determining reasonable notice, does not include a consideration of the time between the date of termination and the employee's eligibility for a full pension. The motion judge therefore erred in setting the notice period at 16.8 months, the time needed to bridge to his entitlement to an unreduced pension.

   Brown J.A. noted that the motion judge went on to make an alternate finding of a 22 month period of reasonable notice. He agreed with Arnone that this period fell within "an acceptable range" established by the case law for supervisors of his age and length of service. In accordance with the appropriate standard of appellate review on the issue of the period of reasonable notice in wrongful dismissal cases, set out in Minott v. O'Shanter Development Co. (1999), 42 O.R. (3d) 321 (C.A.), the Court declined to interfere with the motion judge's assessment.

   Brown J.A. observed that because the motion judge took a "bridging" approach to calculating the period of reasonable notice, he did not deduct from the damage award Arnone's income from his new employment during the notice period. Brown J.A. agreed with both parties that the motion judge erred in this regard.

   Best also submitted that the motion judge erred in awarding Arnone a retirement allowance equal to 30 weeks' pay. Brown J.A. found that the motion judge demonstrated a misapprehension of the evidence by approaching Arnone's claim to a retirement allowance as one involving his pension benefits. Eligibility for the retirement allowance was not tied to an employee's entitlement to a pension, but was, in fact, a separate contractual entitlement based on the employee's length of service. Nonetheless, Brown J.A. ultimately came to the same conclusion as the motion judge, observing that there was no dispute that it was a term of Arnone's contract of employment that he would receive a retirement allowance of one week for each year of service up to 30 weeks. In Brown J.A.'s view, the retirement allowance, which benefitted both parties, came with an implied term that if an employee was terminated without cause, he would be entitled to payment of the accumulated retirement allowance in consideration for his service to the company. In the absence of any provision to the contrary, effect ought to be given to that implied term. Best opted not to limit its employees' entitlement to the retirement allowance, therefore, Arnone was entitled to the accumulated retirement allowance upon his termination.

   Best initially challenged the motion judge's decision to award Arnone damages in the amount of $65,000 to replace the loss of his pension benefits during the notice period. Although...