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

for junior employees. This is so particularly in the light of the fact that, in the
sample of cases on which the learned judge relied in arriving at his conclusion, the
average period of unemployment following dismissal was, as he noted more than
once, 9.3 months. If the availability of other employment is to swallow up the
character of employment factor then it would seem that the period of reasonable
notice for senior employees should be substantially reduced.
There is a further point which is related to the narrow selection of the cases relied
upon as the basis before indicating, in the learned judge's view, Ms. Cronk's
proper entitlement. In this regard I refer to a comment on the judgment under
appeal by Barry B. Fisher in 6 C.C.E.L. (2d) 29 at 36 which indicates the other
choices which could reasonably have been made among the decisions with
different results respecting the appropriate notice period. See also Harris,
Wrongful Dismissal (1990 ed.) at pp. 4-42 to 4-42.8 (cases involving plaintiffs 50
years of age and over).
Related to the learned judge's view that character of employment meant
availability of other employment, he appears to have thought that the law imposed
an obligation on the employer to adduce evidence in support of its position on the
proper period of reasonable notice that senior specialized employees have greater
difficulty in securing new employment. In this regard he quoted the following
passage from the judgment of Gibson J. in Stevens v. Globe and Mail reflex,
(1992), 7 O.R. (3d) 520 at 528:
No evidence was adduced on behalf of the Globe &
Mail that any other suitable employment positions
(management or otherwise) were available to the
plaintiff in 1989 or 1990.
Gibson J. said this, however, in the context of considering the issue whether the
plaintiff had failed to mitigate his damages, an issue with respect of which the
Globe and Mail had the burden of proof. Accordingly, Stevens does not support
MacPherson J.'s conclusion that an obligation rests on the employer to adduce
evidence respecting the proper notice period.
In my view, the 12 months notice in the proposed disposition of Lacourcière J.A.
is in general accord with what one would have predicted on the basis of the
decisions applying the Bardal test and, in light of my observations in the
preceding paragraphs, I am not persuaded that the reasons of MacPherson J. justify
the departure reflected in his disposition.
The parties were content to have MacPherson J. and this court dispose of Ms.
Cronk's motion for summary judgment on the basis of the materials which they
had filed with the court. They were satisfied that the court could come to a just