Character of employment and Bardal analysis for wrongful dismissal

Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 deals with the character of employment as one of the Bardal factors to consider in determining proper notice in an employment case:

[22]         Crown Metal argues that the character of employment factor is "often given the greatest weight in the determination of [the] appropriate notice period", and that the motion judge erred by giving it insufficient weight in this case.  Crown Metal also renews its argument that this court's decision in Cronk and a range of other employment law cases establish 12 months as the upper limit of appropriate notice for clerical and unskilled employees.

[23]         On the latter point, I agree with Mr. Di Tomaso that this court's decision in Minott is a full answer.  Laskin J.A. rejected the notion that 12 months is the cap for every clerical and unskilled employee, regardless of the other Bardal factors.  Crown Metal argues that Laskin J.A. allowed that it might be appropriate to "establish upper limits for particular classes of cases":  Minott at para. 72.  However, he did not do so in Minott and I would decline to do so here.

[24]         Moreover, the cases submitted by both parties help establish a range of reasonable notice periods.   The 22 months awarded by the motion judge is within the upper end of the range, and that is understandable given that Mr. Di Tomaso would have scored so highly on the other Bardal factors: he was 62 years old at the time of his dismissal, he had served the company for 33 years, and he had made unsuccessful inquiries or applications with 22 companies in the area.

[25]         By way of contrast, the claimant in Minott served in a non-supervisory role for 11 years, was 43 years old at the time of termination, and was unlikely to find similar work because of a recession.  Here, as in that case, to interfere with the motion judge's determination of the appropriate notice period would amount to "unwarranted tinkering": Minott at para. 77.

[26]         With regard to the appropriate weight to be given to the character of employment, I am also mindful of McRuer C.J.H.C.'s statement in Bardal at p. 145, that "[t]here can be no catalogue laid down as to what is reasonable notice in particular classes of cases."  Bastarache J., writing for the majority of the Supreme Court in Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, cited this statement with approval at para. 31 and went on to caution that "[n]o one Bardal factor should be given disproportionate weight."

[27]         Crown Metal would emphasize the importance of the character of the appellant's employment to minimize the reasonable notice to which he is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today a factor of declining relative importance: see Medis Health and Pharmaceutical Services Inc. v. Bramble (1999), 175 D.L.R. (4th) 385 (NBCA) ("Bramble") and Vibert v. Paulin (2008), 291 D.L.R. (4th) 302 (NBCA).

[28]         This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply be taken for granted, particularly in today's world. In Bramble, Drapeau J.A. put it this way, at para. 64:

The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter of common knowledge. Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy.