Employees were entitled to compensation they would have received had they remained employed

Employees P and D elected to participate in retirement income option of their pension plan, which meant that employer contributed three per cent of their base salaries to their savings plan and another three per cent to their supplementary pensions. After termination of employment but during 26-month notice period, employer amended savings plan such that employer would contribute one per cent for retirement income option. Motion judge granted employees' motion for summary judgment of their claims for wrongful dismissal. Hearing was held to determine damages. Motion judge determined that given their dismissal from employment, employees did not have opportunity to re-elect to leave retirement income option. Judge determined that employer's contribution would not have exceeded three per cent. Employees cross-appealed on ground that judge erred in awarding damages for employer's annual contributions to their savings plan based on three per cent rather than six per cent of their base salaries. Cross-appeal allowed. Judge erred in interpretation of savings plan. Amendments to plan provided that if employee opted out of retirement income option, employer’s contribution would be six per cent to savings plan, assuming aggregate amount employee had contributed was also six per cent, which was case for P and D. Given judge’s finding that employees were entitled to compensation that they would have received had they remained employed, she should have awarded damages for lost savings plan benefits in amount of six per cent of their base salaries for period of reasonable notice, less amounts already paid for eight weeks of statutory notice. Employer was to pay employees six per cent of their base salaries for notice period.

Dussault v. Imperial Oil Limited (2019), 2019 CarswellOnt 8609, 2019 ONCA 448, David Brown J.A., L.B. Roberts J.A., and B. Zarnett J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 2504, 2018 ONSC 1168, Favreau J. (Ont. S.C.J.). (Ont. C.A.); varied (2018), 2018 CarswellOnt 11518, 2018 ONSC 4345, Favreau J. (Ont. S.C.J.).

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