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Employment - Appeals. Oz Optics Limited v. Summers
In Oz Optics Limited v. Summers (Div Court, 2023) the Divisional Court considered the SOR for appellate issues of wrongful dismissal and interpretation of employment contracts:[7] A judge’s interpretation of an employment contract is a question of mixed fact and law, to be reviewed on the standard of palpable and overriding error: see Singh v. Adecco Employment Services Limited, 2019 ONSC 1512, [2019] O.J. No. 1180 (Div. Ct.) at para. 4.
[8] The trial judge’s finding on the applicable common law notice period was one of mixed fact and law; the standard of review is therefore palpable and overriding error. The trial judge’s decision is entitled to deference; an appeal court is not to interfere or substitute its own figure for notice unless the damages awarded fall outside the normal range, there was an unreasonable finding of fact or if the trial judge committed an error in principle: see Minott v. O’Shanter Development Co., 1999 CanLII 3686 (ON CA), [1999] O.J. No. 5 (Ont. C.A.) at para. 62. . Kerner v. Information Builders (Canada) Inc.
In Kerner v. Information Builders (Canada) Inc. (Ont CA, 2021) the Court of Appeal stated the de facto appeal deference accorded to trial judges for quantum of wrongful dismissal awards:[2] The trial judge’s assessment of reasonable notice is entitled to deference and should not be disturbed unless it is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, we may substitute our own figure, but we should do so sparingly if the trial judge’s award is within an acceptable range, despite the error in principle: Holland v. Hostopia.Com Inc., 2015 ONCA 762, at para. 44.
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