Arnone v. Best Theratronics Ltd., 2015 ONCA 63
Mr. Arnone was age 53 and had worked for Best Theratronics Ltd. (Theratronics) for 31 years when his employment was terminated due to restructuring. Mr. Arnone was a member of a defined benefit pension plan and was within 16.8 months of obtaining an entitlement to a full, unreduced pension on retirement. Theratronics provided Mr. Arnone 14.4 weeks’ pay in lieu of notice, which was the minimum notice period required pursuant to the Canada Labour Code.
Mr. Arnone commenced an action for wrongful dismissal and successfully brought a motion for summary judgment. The motion judge held that Mr. Arnone was entitled to a reasonable notice period equal to 16.8 months, which was the amount of time required to bridge Mr. Arnone’s entitlement to his full pension. In the alternative, the motions judge held that absent the pension issue, a 22-month notice period would be reasonable in the circumstances. Mr. Arnone was also awarded C$65,000 in damages on account of the value of the loss of an unreduced pension, C$55,000 representing a retirement allowance equal to 30 weeks’ pay which was premised on Theratronics’ written policy of providing one week per year of employee service up to a maximum of 30 weeks upon an employee’s retirement, and costs. Theratronics appealed.
The Ontario Court of Appeal (Court of Appeal) upheld the motion judge’s finding that no genuine issue requiring a trial existed based on the character of Mr. Arnone’s employment. The Court of Appeal held that the analysis established in Bardal v. The Globe & Mail Ltd. (1960), 24 DLR (2d) 140 (Ont HC) (Bardal) remains the correct approach to be applied by courts in determining what constitutes reasonable notice of termination. The motion judge’s calculation of the reasonable notice period by reference to the amount of time required to “bridge” Mr. Arnone to the date he would become eligible for an unreduced pension was in error as it was not consistent with the Bardal analysis. The Court of Appeal held that the motion judge’s alternative finding of a 22-month notice period fell within the acceptable range of notice periods for employees in similar circumstances to Mr. Arnone and was therefore substituted for the motion judge’s original order of 16.8 months. The Court of Appeal also upheld the motion judge’s finding that Mr. Arnone was entitled to a retirement allowance agreeing with the motion judge that it was an implied term that if an employee was terminated without cause, he or she would be entitled to payment of the accumulated retirement allowance in consideration of service and loyalty to Theratronics.