Motion Industries (Canada) Inc. v. McCarthy

Motion Industries (Canada) Inc. v. McCarthy

The Court of Appeal dismissed the appeal, holding that the trial judge did not abuse judicial notice, correctly found constructive dismissal on the facts, properly declined to require the employee to accept the recalled diminished position as mitigation, reasonably awarded 16 months' notice, and correctly...

Source-derived case information.

Citation
2015 ONCA 224
Parties
Appellant/defendant: Motion Industries (Canada) Inc.; Respondent/plaintiff: Kerry McCarthy
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
7 April 2015
Procedural Posture
Civil Employment Wrongful Dismissal Appeal / Court of Appeal Decision on Appeal From Superior Court
Outcome
Appeal dismissed
Legal Topics
Constructive Dismissal, Wrongful Dismissal, Mitigation, Reasonable Notice, Statutory Interpretation, Employment Standards Act S.56
Source Language
english
Employment Law Labour Law Civil Procedure Constructive Dismissal Wrongful Dismissal Mitigation Reasonable Notice Statutory Interpretation +1 more

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Parties

Motion Industries (Canada) Inc.

Appellant/defendant

Kerry McCarthy

Respondent/plaintiff

Procedural Posture

Civil Employment Wrongful Dismissal Appeal / Court of Appeal Decision on Appeal From Superior Court

Legal Issues

  1. 1 Whether the trial judge improperly took judicial notice of economic facts about the mining industry
  2. 2 Whether the employee was obliged to accept the recall offer as part of his duty to mitigate
  3. 3 Whether a 16 month notice period was reasonable

Ratio Decidendi

The Court of Appeal dismissed the appeal, holding that the trial judge did not abuse judicial notice, correctly found constructive dismissal on the facts, properly declined to require the employee to accept the recalled diminished position as mitigation, reasonably awarded 16 months' notice, and correctly interpreted s.56 of the Employment Standards Act as not displacing the common law doctrine of constructive dismissal in the circumstances because the employee was recalled before any statutory expiry of the temporary lay-off.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to the respondent fixed at $15,000 inclusive of disbursements and taxes