In Saarinen v Rogers Communications ( 2023 ONSC 4328 ) Associate Justice Frank dealt with a refusal motion in which the defendant refused to answer the following question :
Question: To produce the termination packages of all employees (names of said employees may be redacted to only provide first initials) who had more than 25 years of service and were terminated without cause by the Defendant during the period of January, 2017 to December, 2019.
This is what the Court ruled:
[10] It is well-established that in determining the common law entitlement of a dismissed employee, the Court applies the Bardal factors on a case-by-case basis. Thus, a termination package offered to an employee or termination packages offered to other employees would ordinarily not be relevant to the determination of the applicable reasonable notice period for the plaintiff under the common law, which is based on the Bardal factors. As a result, if the plaintiff’s claim were based solely on a common law entitlement, the requested information and documents would not be relevant.
[11] However, in the circumstances of this action, the plaintiff asserts a claim that goes beyond the common law notice entitlement. Specifically, in the amended statement of claim, including paragraphs 12, 18 and 31, the plaintiff alleges that she was wrongfully dismissed and that, based on the implied terms of her employment contract and the defendant’s policies and/or practices in place, she was entitled to a termination package that included 24 months compensation with no mitigation requirements. The defendant consented to the amendments tonthe statement of claim that include these pleadings and joined issue with the plaintiff on this point. For example, at paragraph 22 of the amended statement of defence, the defendant deniesthe implied term alleged by the plaintiff that she was entitled to 24 months compensation andbthat she had no duty to mitigate.
[12] In light of the pleadings in this action, the disputed questions are relevant. If the court finds that there was no just cause for the plaintiff’s dismissal, the termination packages provided to similarly situated employees and the defendant’s policy and/or practice determining termination packages will be relevant to the determination of the plaintiff’s damages. As there is no evidence that the requested information and documentation would offend the principles of proportionality, the questions should be answered, subject to any privilege considerations, as outlined below.
My Comments:
I am not sure why the Plaintiff would plead that it was a term of her employment that she was entitled to the notice period that the employer normally gave to its employees. In my limited 43 years of experience I have rarely seen an employer termination policy which is better than the common law reasonable notice.
I think that this decision is fundamentally flawed as the assessment as to what is reasonable notice is that of the Court alone and should not be influenced in any way by what the past practice of the employer. In most situations of mass layoffs the overwhelming majority of terminated employees take whatever offer the employer makes. Does this mean that an employer can now lead evidence that since 75% of its employees took the employers’ crappy first offer, that is all this particular employee should get ?
Many years ago some courts initially accepted the concept of ” baseball justice ” which meant that the Court would assess whether the employers offer or payment of notice was within the range of reasonable notice. This approach was soundly rejected by the Court of Appeal which reiterated the principle that the determination of reasonable notice was to be determined by the Court and not to simply judge the reasonableness of the employer’s offers.
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