Cronk v. Canadian General Insurance Co., 1995 CanLII 814 (ON CA)

LACOURCIÈRE J.A.:
)
Appellant )
) Heard: June 8 and 9, 1995
This is an appeal from the summary judgment of the Honourable Mr. Justice
MacPherson, dated July 14, 1994 (and now reported 19 O.R. (3d) 515), awarding
damages of 20 months salary in an action for wrongful dismissal against the
appellant. Among other issues, this appeal raises the central question of the
weight to be given to the character of an employee's occupation in setting the
period of compensation to which the employee is entitled when he or she is
dismissed without cause.
I THE FACTS
From April, 1958 to April, 1971 the respondent, Edna Cronk, was employed as a
clerk-stenographer by the United States Fidelity & Guarantee Co., the predecessor
to the appellant company, Canadian General Insurance Company. In 1971 she
resigned from the company in order to raise her family. Over four of the
following six years, however, she worked at the offices of the appellant through
the auspices of a temporary employment agency. In March of 1977 she was
rehired directly by the respondent, attaining the full-time position of assistant
underwriter by October of 1978. She held that position until her employment was
terminated.
At the time of termination, the respondent was fifty-five years of age. She had
spent practically all her working years as an employee of the appellant. There is
no dispute that her duties at the company were essentially clerical, and that,
despite the length of her tenure, her position was junior. Nor is there any question
that her termination was not for cause; it has been the consistent position of the
appellant that the elimination of the respondent's position was the result of internal
reorganization, in no way reflecting the appellant's performance, commitment or
loyalty as an employee.
The respondent was given notice of termination of employment on September 9,
1993 to take effect immediately. The appellant offered her bi-weekly payments
equal to nine months salary. These payments would be reduced by half if she
found new employment. The respondent refused the offer. Subsequently, in order
to meet its statutory duties, the appellant deposited into her bank account
payments representing 8 weeks salary in lieu of notice, and 16 weeks severance
pay, the latter amount calculated on 16 years of service. As well, in accordance
with its original offer, the appellant made payments representing an 8% vacation
pay entitlement for the period ending December, 31, 1993. The respondent
continued to dispute the sufficiency of these payments and no further payments