In Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (CanLII) the Ontario Court of Appeal upheld an award of 22 months for an unskilled worker.
The Facts: The plaintiff had worked for over 33 years as a mechanic and pressman, roles which involved no supervisory or management role. He was 62 years old when dismissed, earning just over $30 per hour.
Character of Employment: The employer argued that the court should apply the law as set out by the same court in Cronk, which had for many years been relied on by employers as capping the notice available to unskilled workers at 12 months.
In Di Tomaso, Ont. Court of Appeal referred to its earlier decision in Minott v. O’Shanter Development Company Ltd. as an answer to Cronk, and confirmed that there is no “upper limit” on the notice periods available to unskilled non-managerial employees.
“Moreover, the imposition of an arbitrary 12 months ceiling for all non-managerial employees detracts from the flexibility of the Bardal test and restricts the ability of courts to take account of all factors relevant to each case and of changing social and economic conditions.”
CONCLUSION
For years, Ontario awards of damages to employees without supervisory or managerial responsiblities, and without education or training in some technical field were thought to be limited to 12 months. This has now been modified for Ontario. In other Canadian jurisdictions, including British Columbia (Byers, etc.) and New Brunswick (Bramble etc.) this change occurred much earlier.
Mr. Di Tomaso obtained an award of 22 months, not materially different than the award that would have been given to a person whose job would have once been regarded as justifying longer awards.
The “character of employment” factor has not disappeared as a factor, but it is now less important than it once was, and specific evidence will be required to elevate the factor to it’s historical prominence.