COURT OF APPEAL FOR ONTARIO

CITATION: Wood v. CTS of Canada Co., 2018 ONCA 758

DATE: 20180919

DOCKET: C64519

Hoy A.C.J.O., Brown and Trotter JJ.A.

BETWEEN

Claudette Wood, Bruce Cook and John Featherstone

Plaintiffs (Respondents)

and

CTS of Canada Co. and CTS Corporation

Defendants (Appellants)

Timothy Pinos, Kristin Taylor and Caitlin Russell, for
    the appellants

Stephen Moreau and Genevieve Cantin, for the respondents

Heard: May 15, 2018

On appeal from the judgment of Justice John R. Sproat of
    the Superior Court of Justice, dated September 26, 2017, with reasons reported
    at 2017 ONSC 5695, 42 C.C.E.L. (4th) 43.

Hoy A.C.J.O.:

I.

Introduction

[1]

This appeal arises from the closure of the Streetsville, Ontario
    manufacturing plant operated by CTS of Canada Co. This resulted in a mass
    termination for purposes of the
Employment Standards Act, 2000
, S.O.
    2000, c. 41 (the ESA).

[2]

A class action was brought on behalf of former employees against their
    common employers, CTS of Canada Co. and its parent corporation CTS Corp.
    (collectively CTS). The class consists of 74 former active employees who did
    not sign a release with CTS and who were not dismissed for cause.

[3]

The parties agreed that the common issues could be resolved on a motion
    for summary judgment. These issues included the three key issues on this appeal
    brought by CTS. The issues relate to the requirement under the ESA to give
    notice to the ESA Director in the case of a mass termination, and the adequacy
    of the notice of termination given by CTS.

[4]

For the reasons that follow, I would allow CTSs appeal in part.

II.

Overview

[5]

On April 17, 2014, CTS gave written notice to employees that it was
    closing its Streetsville plant and that their employment would terminate on
    March 27, 2015. It subsequently extended the termination date for most
    employees to June 26, 2015.

[6]

The ESA imposes a number of requirements in the case of mass
    terminations. If an employer terminates 50 or more employees in the same
    four-week period, the employer must give at least eight weeks notice of
    termination: ESA, s. 58(1);
Termination and Severance of Employment
,
    O. Reg. 288/01, s. 3(1) (the Regulation). An employer required to give notice
    under s. 58 must also provide the ESA Director with prescribed information in
    Form 1 and post the Form 1 in the employers establishment: ESA, s. 58(2). The
    requirement to provide a Form 1 to the Director is reinforced through s. 58(4).
    Under s. 58(4), notice required under s. 58(1) is deemed not to have been given
    until the Director receives the Form 1 information required under s. 58(2).

[7]

CTS did not serve and post the Form 1 information until May 12, 2015, 12
    days into the mandatory minimum eight-week notice period and more than a year
    after it gave notice to its employees.

[8]

The motion judge concluded that s. 58(2) required CTS to serve and post
    the Form 1 information when it gave notice to employees on April 17, 2014 (and
    not eight weeks before the date of termination, as CTS maintained) and that,
    pursuant to s. 58(4) of the ESA, its notice was not effective until it did so
    on May 12, 2015. In other words, the motion judge concluded that the failure to
    file the Form 1 in a timely way had the effect of invalidating the 13 months of
    working notice CTS provided prior to filing and posting the Form 1 information
    on May 12, 2015. CTS challenges his conclusion on appeal.

[9]

As I will explain, I agree that the motion judge erred in deciding the
    Form 1 issue. CTS was only required to serve and post the Form 1 information at
    the beginning of May 2015. Since CTS was 12 days late in serving and posting
    the Form 1 notice, class members are entitled to a further 12 days pay in lieu
    of notice.

[10]

The
    motion judge also concluded that CTS was not entitled to credit for working
    notice for any week in which an employee worked overtime contrary to the ESA or
    in which the employee was forced to work overtime that had a significant
    adverse effect on the ability of the employee to look for new employment. As
    well, he concluded that in the case of the five employees who worked more than
    13 weeks beyond their original separation date, CTS is only entitled to credit
    for common law working notice from the date of the letter providing them with
    notice of their actual termination date. I agree with the motion judges disposition
    of these two issues.

[11]

I
    address these three issues in turn.

III.

DID SECTION 58 REQUIRE CTS TO SERVE AND POST THE FORM 1 NOTICE ON APRIL
    17, 2014?

[12]

Before
    turning to my analysis, I will review relevant aspects of the ESA scheme and
    the motion judges decision, which turns on an interpretation of s. 58 of the
    ESA. Section 58 and other relevant provisions are set out in Appendix A for
    easy reference.

(a)

The ESA Scheme

[13]

The
    ESA sets out employment standards  defined in s. 1(1) as a requirement or
    prohibition  that applies to an employer for the benefit of an employee
    that apply to work performed in Ontario: ESA, s. 3(1).

[14]

An
    employer or employee cannot contract out of or waive an employment standard. Section
    5(1) makes any such contracting out or waiver void.

[15]

Termination
    and severance pay provisions are set out in Part XV of the ESA from ss. 54 to 67.

[16]

Employees
    are entitled to notice of termination or pay in lieu of notice under the ESA on
    a sliding scale, which is essentially one week per year of service to a maximum
    of eight weeks: ESA, s. 57.

[17]

On
    a mass termination, employees have an enhanced right to notice of termination.
    The length of notice is dependent on the number of employees that are
    terminated and not on the employees years of service: ESA, s. 58; Regulation,
    s. 3(1).

[18]

Employers
    such as CTS, with a payroll in excess of $2.5 million per year, must also pay
    severance pay to employees with five or more years of service. Severance pay
    is one weeks pay for each year of service to a maximum of 26 weeks. Unless the
    employee otherwise agrees, the employer must actually pay severance pay, and
    not simply continue to pay wages over the severance pay period: ESA, ss. 64,
    65. Most of the class members were entitled to severance pay.

[19]

As
    noted above, under s. 58(2) an employer must provide certain information to the
    ESA Director in the one-page Form 1 document. The information includes the name
    of the employer, the location where the employees work, the number of employees
    who work at the location and the number whose employment is being terminated,
    classified by the way in which they are paid, the date or dates on which it is
    anticipated that their employment will be terminated, and the economic
    circumstances surrounding the termination: Regulation, s. 3(2).

[20]

Before
    the motion judge, it was common ground that the Form 1 notice must be provided
    to the Director at the same time as it is posted. Like the motion judge, I will
    refer to the service on the Director and the posting requirement collectively
    as Form 1 notice.

[21]

Practical
    consequences flow from the Form 1 notice: it can trigger the provision of
    significant government services to affected employees.

[22]

On
    receipt of a Form 1, the Ministry of Labour (MOL) prepares a Form 1 summary
    which is forwarded to MOL staff and the Ministry of Advanced Education and
    Skills Development (MAESD).

[23]

The
    MAESD then contacts the employer. If the employer indicates that it is aware of
    the Employment Ontario programs and services that are available to assist
    employees and has already put in place appropriate types of support services,
    the employer may decline assistance and the MAESD will not attend the employers
    premises. If the employer indicates that it has no adjustment services in
    place, as in this case, the MAESD will work with the employer to provide the
    affected employees with the MAESD services.

[24]

In
    the case of CTS, at a minimum, a representative of the MAESD would have
    attended at CTSs premises and outlined supports and services available through
    Employment Ontario.

[25]

The
    Employment Ontario Program Guide includes the following information:

(a)       Counsellors can help prepare a
    resume and provide tips for a successful job interview.

(b)       Counsellors can provide information as to the local
    job market and what jobs are in high demand.

(c)       The Second Career Program provides eligible laid off
    workers with up to $28,000 to train for certain occupations that are in high
    demand.

(d)       Counsellors can provide information on starting a
    business and the Ontario Self-Employment benefit.

(e)       Counsellors can provide information on apprenticeship
    programs including financial assistance programs.

(f)        Reading, writing and math skills assessment and training
    are available.

(g)       English and French language training is available.

[26]

An
    Ontario government website describes a program, the Adjustment Advisory
    Program, which makes an advisor available to employees terminated in a mass
    termination to provide career, financial and personal counselling, and to assist
    in registering for other services.

[27]

While CTS brought in Right Management at its expense to conduct
    outplacement workshops prior to the plant closure, CTS acknowledged that Right
    Management did not provide any of the above government services.

(b)

The motion judges reasons

[28]

The motion judge concluded that CTS was required to give notice
    of termination under s. 58(1)
on April 17, 2014
.
    Section 58(1) provides as follows:

(1) Despite section 57,
the employer shall
    give notice of termination in the prescribed manner and for the prescribed
    period
if the employer terminates the employment of 50 or more employees
    at the employers establishment in the same four-week period. [Emphasis added.]

[29]

The
    prescribed period for the purposes of s. 58(1) is set out in s. 3 of the
    Regulation:

3(1) The following periods are prescribed for the purposes of
    subsection 58(1) of the Act:

1. Notice shall be given at least
    eight weeks before termination if the number of employees whose employment is
    terminated is 50 or more but fewer than 200.

[30]

Thus, while the prescribed period in this case is eight weeks,
    the motion judge concluded that notice of termination was required more than a
    year before the plant was scheduled to close. At paras. 57 and 59, he stated:

On April 17, 2014 CTS gave notice to 77 employees that their
    employment would terminate March 27, 2015. It follows that on April 17, 2014,
    CTS had to comply with s. 58(1) of the ESA and provide notice of the mass terminations
    "in the prescribed manner and for the prescribed period.

In my view, the plain meaning of the ESA is that an employer
    gives s. 58(1) notice one time. An employer in the position of CTS can give
    that notice eight weeks prior to the termination date or at such earlier date
    as the employer chooses. In this case, CTS chose the earlier date of April 17,
    2014. I do not see how CTS can get around the fact that it instituted a mass
    termination on April 17, 2014 and had to comply with s. 58(1) on that date.

[31]

In
    reaching that conclusion he referred to other subsections, including s. 58(2),
    (4) and (5):

(2) An employer who is required to give
notice
under this section,

(a) shall provide to the Director
    the prescribed information in a form approved by the Director; and

(b) shall,
on
    the first day of the notice period
, post in the employers establishment
    the prescribed information in a form approved by the Director.

(4) The
notice required under subsection
    (1)
shall be deemed not to have been given until the Director receives
    the information required under clause (2)(a).

(5) The employer shall post the information required under
    clause (2)(b) in at least one conspicuous place in the employers establishment
    where it is likely to come to the attention of the affected employees and the
    employer shall keep that information posted throughout
the
    notice period required under this section
.
[Emphasis added.]

[32]

On
    his reading, all the references to notice and notice period in s. 58
    referred to the notice given, or the notice period that commenced, on April 17,
    2014. At paras. 60-61, he explained:

I think it inescapable that:

*The "notice" referred to
    in the introductory sentence to s. 58(2) must be the notice of termination
    required by s. 58(1); and

*When s. 58(2)(b) refers to the Form
    1 posting on the first day of the notice period, it is the same notice period
    referred to in s. 58(1) and the introductory words of para. 58(2).

Section 58(1) and (2) refer to one and the same notice period.
    In the case of CTS that is the notice period that commenced April 17, 2014. It
    follows from this reasoning that the notice referred to in s. 58(4) and the
    notice period required as referred to in s. 58(5) also refer to the notice
    period that commenced April 17, 2014.

[33]

The
    motion judge rejected CTSs argument that the s. 58(4) reference to the notice
    required and the s. 58(5) reference to the notice period required, should be
    read as referring to the statutory notice period only. The term statutory
    notice period is defined as follows in s. 1(1):

(1) In this Act ... statutory notice period means,

(a)  the period of notice of
    termination required to be given by an employer under Part XV, or

(b)  where the employer provides a
    greater amount of notice than is required under Part XV, that part of the
    notice period ending with the termination date specified in the notice which
    equals the period of notice required under Part XV;

[34]

At
    para. 66, the motion judge reasoned that [i]f the intention had been to refer
    to [the] statutory notice period, it would have made sense to use the defined
    term statutory notice period.

[35]

The
    motion judge also found, at paras. 67-68, that legislative history supported
    the conclusion that Form 1 notice is required on the first day of the notice period
    actually provided by the employer. From 1987 until 2000 when the current
    version of the ESA came into force, the ESA made clear that Form 1 notice was
    required on the first day of the statutory notice period. When the ESA was
    revised in 2000, the 1987 obligation to give Form 1 notice on the first day of
    the statutory notice period was changed to an obligation to give Form 1 notice
    on the first day of the notice period. The motion judge explained that in
R.
    v. Ulybel Enterprises Ltd.
, 2001 SCC 56, [2001] 2 S.C.R. 867, Iacobucci J.
    stated that there is a presumption that amendments to the wording of a
    legislative provision are made for some intelligible purpose, such as to
    clarify the law. The motion judge also noted that Iacobucci J. endorsed the
    proposition that changes are intended to be purposive unless there is evidence
    that only language polishing was intended, but rejected CTSs submission that
    the change in language with respect to the Form 1 notice was simply language
    polishing.

[36]

At
    para. 69, the motion judge took note of s. 60(1) of the ESA, which provides:

During a notice period under section 57 or 58, the
    employer,

(a) shall not reduce the employees
    wage rate or alter any other term or condition of employment;

(b) shall in each week pay the
    employee the wages the employee is entitled to receive, which in no case shall
    be less than his or her regular wages for a regular work week; and

(c) shall continue to make whatever
    benefit plan contributions would be required to be made in order to maintain
    the employees benefits under the plan until the end of the notice period.

[37]

The
    statutory freeze of an employees conditions of employment in s. 60(1) applies
    [d]uring a notice period under section 57 or 58. Section 60(1) does not
    utilize the defined term statutory notice period. Therefore, the motion judge
    held the notice period under ss. 57 and 58 is the notice period actually given,
    which cannot be less than the statutory minimum.

[38]

At
    para. 70, the motion judge acknowledged that the MOLs July 2000 Consultation
    Paper
[1]
indicated that the government proposed only minor changes to the ESA Part XV
    termination and severance pay provisions. In his view, changing the date when an
    employer is required to provide a one-page Form 1 to the Director could certainly
    be regarded as minor.

[39]

At para. 71, he also acknowledged that the MOLs policy and
    interpretation manual for the ESA
[2]
supported CTSs position. The Manual states that if the employer provides
    greater notice of mass termination than is required, the Form 1 is to be filed
    by the first day of the statutory portion of the notice period. He noted that
    it was at least possible that the Manual was not properly revised in 2000 and
    that the current MOL online guide simply refers to Form 1 notice being required
    on the first day of the notice period.

[40]

The motion judge outlined, at paras. 72 and 73, bedrock
    principles that he said supported his conclusion on when Form 1 notice must be
    provided:

In any event, what I regard as extremely important, much more
    than any policy manual, are the bedrock premises and principles endorsed time
    and time again by the Supreme Court of Canada:

(a)     Employees, particularly at the time of termination, are
    vulnerable;

(b)     Employees are probably not aware of their legal rights
    and, in my view, it follows that equally they are probably not aware of the
    nature and extent of government support available and not aware of or in
    possession of many job hunting skills.

(c)     In the event of ambiguity, the statutory interpretation
    which provides the greater benefit to employees is to be preferred.

(d)     In the event of ambiguity, a statutory interpretation
    which encourages [employers] to comply with the minimum statutory requirements
    and which provides a benefit to a greater number of employees is to be
    preferred.

These bedrock principles are all served by the conclusion that
    Form 1 notice is required at the time the employer gives notice of a mass
    termination.

[41]

The
    motion judge commented that it would be much more beneficial for employees who
    required an upgrade to their math, writing or reading skills, or who wished to
    consider apprenticeship programs under the Second Career program, to have 12
    months to do so and not simply the eight-week statutory notice period. He
    reasoned that it would be perverse if CTS could gain the benefit of a long
    period of working notice but not have to take the simple step of providing Form
    1 notice, which would have allowed the employees to benefit from the government
    services that are triggered by Form 1 notice.

[42]

In
    his view, the interpretation of s. 58 was clear and required Form 1 notice on
    April 17, 2014. Further, he stated that even if s. 58 were ambiguous, the
    ambiguity must be resolved in favour of the employees.

(c)

Analysis

[43]

The
    respondents repeat the arguments made to, and accepted by, the motion judge,
    and reflected in the motion judges analysis.

[44]

I
    come to a different conclusion than the motion judge. On my reading of s. 58,
    Form 1 notice must be given on the first day of the statutory notice period. I
    reach this conclusion taking into account the purpose of the ESA and the
    wording of s. 58 read in context. My interpretation is also consistent with legislative
    history, extrinsic documents referred to by the trial judge, and case law
    governing the interpretation of employment standards legislation.

(i)

The Purpose of the ESA

[45]

The
    purpose of the ESA is to protect the interests of employees by requiring
    employers to comply with certain
minimum
standards,
    including
minimum
periods of notice of
    termination:
Machtinger v. HOJ Industries
, [1992] 1 S.C.R. 986, at p.
    1003. Its objective is not to impose requirements on employers in excess of the
    statutory minimums. Tying the requirement to provide Form 1 notice to the
    Director to when an employer gives what it intends to be common law reasonable
    notice, in excess of the statutorily-required minimum notice period, is not
    consistent with the object of the Act of requiring employers to comply with
    certain minimum standards.

(ii)

Textual Analysis

[46]

Nor
    is such a requirement consistent with the language of s. 58.

[47]

In
    my view, the motion judges conclusion that CTS was obligated to file the Form
    1 notice on April 17, 2014 is rooted in his erroneous determination, at para.
    57 of his reasons, that CTS was required to comply with s. 58(1) on April 17,
    2014. Only if CTS were required to comply with s. 58(1) on April 17, 2014 could
    the phrases [t]he notice required under [s. 58(1)] in s. 58(4) and the
    notice period required under this section in s. 58(5) be interpreted as
    meaning the actual period of working notice given by CTS, rather than the
    statutorily-required minimum notice period of eight weeks.

[48]

Respectfully,
    CTS was not
required
to comply with s. 58(1) on
    April 17, 2014. Section 58 does not require an employer to give notice to its
    employees as soon as it decides that it will effect what would be a mass
    termination. Under s. 58(1), what CTS was required to do was give notice for
    the prescribed period, which was eight weeks. Although CTS was permitted to
    and may have chosen to give notice to the employees, under s. 58(1), and the
    Director, under s. 58(2), earlier, it was only required to give notice by the
    first day of the statutory notice period.

[49]

If
    one considered only ss. 58(1) and (2), the motion judges conclusion that the
    reference to the first day of the notice period in s. 58(2) means the first
    day of the notice period actually given by the employer is arguable. However,
    it is well established that the words of the statute are to be read in their
    entire context and in their grammatical and ordinary sense harmoniously with
    the scheme of the statute, the object of the statute, and the intention of the
    legislature:
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27
    (S.C.C.), at para. 21.

[50]

As
    the motion judge recognized, the words the first day of the notice period in
    s. 58(2) must be read in context. In particular, they must be interpreted in
    light of the words [t]he notice
required
under
    [s. 58(1)] in s. 58(4) and the notice period
required
under this section in s. 58(5) (emphasis added). Because CTS was not
required
to give notice under s. 58(1) on April 17,
    2014, the notice period required under this section in s. 58(5) must mean the
    statutorily-required eight-week notice period. It follows that [t]he notice
    required under [s. 58(1)] in s. 58(4) also means the statutorily-required
    eight-week notice period.

[51]

Further,
    elsewhere in Part XV of the ESA, where the word required is used in
    conjunction with notice or notice period, it is clear that the notice
    referred to is the statutorily-required notice period: see ESA, ss. 61(1),
    62(1) and 65(4).

[52]

One
    of the respondents key arguments is that had the intention been to require
    Form 1 to be given on the first day of the statutory notice period, the term
    statutory notice period would have been used in s. 58(2). To repeat the
    definition of statutory notice period in s. 1(1), it means:

(a) the period of notice of termination required to be given by
    an employer under Part XV, or

(b) where the employer provides a greater amount of notice than
    is required under Part XV, that part of the notice period ending with the
    termination date specified in the notice which equals the period of notice
    required under Part XV;

[53]

Under
    the first part of the definition, statutory notice period includes the
    periods of notice required under ss. 57 and 58, which fall under Part XV
    (Termination and Notice of Severance). Under the second part of the definition,
    the definition clarifies that in the case when greater notice is given that the
    statutory notice falls at the end of the greater period.

[54]

Interestingly,
    the term statutory notice period is only used once in the ESA  in s. 63(1).
    Unlike s. 58, which deals with the notice required in the case of a mass
    termination, s. 63(1) deals with what constitutes severance for the purpose of entitlement
    to severance pay, not termination pay. Under s. 63(1)(e), an employee who
    resigns is considered to have been severed and is entitled to severance pay if:
    (1) the employer gives the employee notice of termination in accordance with ss.
    57 or 58; (2) the employee gives the employer written notice at least two weeks
    before resigning; or (3) the notice of resignation is to take effect during the
    statutory notice period.

[55]

In
    my view, the respondents argument  that the failure to use the term
    statutory notice period in s. 58(2) indicates that the intention was not to
    refer to the prescribed eight-week notice period  must fail. Sections 57 and
    58, which set out the period of notice of termination required to be given by
    an employer under Part XV do not use the term statutory notice period
    because, by definition, those sections set out the statutory notice periods.

[56]

Also,
    as I have already explained, s. 58(2) must be read in the context of s. 58 as a
    whole. Under s. 58(2)(b), the employer is required to post the prescribed
    information on the first day of the notice period, while under s. 58(5) that
    information must be kept posted throughout the notice period
required under this section
(emphasis added), which
    takes you back to s. 58(1). Under s. 58(1), notice must be given for the
    prescribed period, which in this case is eight weeks.

[57]

In
    summary, on a textual reading, while an employer may choose to give notice to
    employees in accordance with s. 58(1) and to the Director in accordance with s.
    58(2) in excess of the prescribed minimum statutory notice period, the
requirement
to provide notice to the Director only
    arises at the beginning of the prescribed minimum statutory notice period. As I
    will address below, the consequence of failing to file the Form 1 notice in a
    timely manner is also tied, by virtue of s. 58(4), to the minimum period of
    notice
required
under s. 58(1).

(iii)

The
    Statutory Freeze in s. 60(1)

[58]

As
    noted above, the motion judge referred to s. 60 in his analysis of s. 58: para.
    69.

[59]

On
    appeal, the respondents rely on the wording of s. 60(1) and (2) in arguing that
    where the notice actually given exceeds the statutorily-required notice period,
    [t]he notice required under [s. 58(1)] in s. 58(4) means the notice actually
    given. In their submission, a notice period under section 57 or 58 in the
    opening flush of s. 60(1), the notice period in s. 60(1)(c) and notice in
    s. 60(2) all refer to the period of notice actually given.

[60]

For
    ease of reference, ss. 60(1) and (2) provide:

(1) During
a notice period under section
    57 or 58
, the employer,

(a)  shall not reduce the
    employees wage rate or alter any other term or condition of employment;

(b)  shall in each week pay the
    employee the wages the employee is entitled to receive, which in no case shall
    be less than his or her regular wages for a regular work week; and

(c) shall continue to make whatever
    benefit plan contributions would be required to be made in order to maintain
    the employees benefits under the plan until the end of
the
    notice period
.

(2) For the purposes of clause (1)(b), if the employee does not
    have a regular work week or if the employee is paid on a basis other than time,
    the employer shall pay the employee an amount equal to the average amount of
    regular wages earned by the employee per week for the weeks in which the
    employee worked in the period of 12 weeks immediately preceding
the date on which notice was given
. [Emphasis added.]

[61]

I
    accept that s. 58 must be read in context, with reference to related statutory
    provisions, such as s. 60, and the scheme of the ESA more generally. However,
    s. 60 does not alter my conclusion that the employers obligation to provide
    Form 1 notice under s. 58(2) arises at the beginning of the statutorily-prescribed
    minimum notice period (in this case, eight weeks).

[62]

First,
    the wording at issue in s. 58 is different from the wording in ss. 60(1) and
    60(2) that the respondents rely on. Crucial to my textual analysis of s. 58,
    above, is the reference in s. 58(4) to [t]he notice
required
under [s. 58(1)] and the reference in s. 58(5) to the notice period
required
under this section (emphasis added).

[63]

Second,
    the respondents do not provide any judicial authority supporting their proposed
    interpretation of a notice period under section 57 or 58 in s. 60(1), or the
    notice period in s. 60(1)(c), or notice in s. 60(2), as meaning the period
    of notice actually given, which they say in turn supports their interpretation
    of s. 58.

[64]

The
    panel sought additional written submissions on this courts decision in
Wood
    v. Fred Deeley Imports Ltd.
, 2017 ONCA 158, 134 O.R. (3d) 481. Contrary to
    the respondents submissions,
Deeley
is not authority for the
    proposition that a notice period under section 57 or 58 in s. 60(1) means the
    notice period actually given. The main issue in
Deeley
was whether a
    termination clause in an employment agreement between the parties was
    unenforceable because it contravened the ESA. The employer paid Ms. Wood her
    salary and benefits during her working notice; the issue of whether the ESA had
    prohibited the employer from reducing Ms. Woods wage rate or altering her
    benefits during the period of working notice was not before the court. However,
    to the extent that
Deeley
touches upon the issue in
obiter
, I
    read it as indicating the the notice period under section 57 or 58 referred
    to in the opening flush of s. 60(1) is the statutorily-
required
notice period: see paras. 20-21.
[3]

[65]

This
    case is similar to
Deeley
in that the question of whether s. 60(1)
    restricts the freeze to the statutory notice period is not before this court.
    The issue on this appeal is the requirement to file the Form 1 notice with the
    Director under s. 58(2), and the consequences of failing to provide such notice
    in a timely manner under 58(4). The interpretation of the scope of s. 60s
    freeze effect is a question that should be left for another day, when that
    issue is squarely before the court and fully argued.

(iv)

Legislative History and Extrinsic Documents

[66]

I
    have also considered legislative history. As the respondents point out, when
    the new ESA was enacted in 2000, the language in the 1987 iteration of the
    legislation requiring Form 1 notice on the first day of the statutory notice
    period was changed to an obligation to give Form 1 notice on the first day of
    the notice period. The language requiring the employer to keep the information
    posted throughout the statutory notice period was changed to an obligation to
    keep the information posted throughout the notice period required under this
    section. As the motion judge noted, in
Ulybel
Iacobucci J. endorsed
    the proposition that legislative changes are intended to be purposive unless
    there is evidence that only language polishing was intended.

[67]

In
    my view, the explanatory note of Bill 147, which introduced the current version
    of the ESA, is evidence that only language polishing was intended. The
    explanatory note of Bill 147 indicates that, [t]he wording in the notice of
    termination and severance pay provisions of the current Act has been revised to
    improve clarity. I equate clarity with language polishing.

[68]

I
    also refer to the Consultation Paper since the trial judge relied on it,
    although I would not give it much weight. The Consultation Paper, which was released
    prior to the introduction of Bill 147, describes the changes to the termination
    provisions in the ESA as part of its objective to modernize and clarify the
    existing employment standards act. Specifically, the Consultation Paper stated:

The government is proposing to make no major changes to the
    notice of termination and severance provisions in the act. A number of minor
    changes would be made to ensure greater consistency in definitions and
    application of the termination and severance provisions.

[69]

If
    the ESA had been changed to require an employer to give Form 1 notice when it
    gives common law reasonable notice of termination, it would not have been a
    minor change. The proof is that this alleged change gave rise to this class
    proceeding.

[70]

My
    interpretation is also consistent with the MOLs Manual, which was published in
    September 2001 when the ESA came into force and was drafted for that piece of
    legislation. The Manual describes itself as the primary reference source of
    the policies of the Director of Employment Standards respecting the
    interpretation, administration and enforcement of the [ESA]. Carswell
    continued to publish the Manual until 2016 and an electronic version remains
    available to the public on request. The record on this appeal includes a copy
    of the Manual published in 2017. That version of the Manual continues to state
    that the notice period in s. 58(2) and the notice period required under this
    section in s. 58(5) correspond to the statutory notice period. The motion
    judge stretches too far when he reasons that it is possible that Manual was
    simply not properly revised in 2000.

[71]

The
    motion judge correctly notes that in a shorter document entitled Termination
    and Severance, which is a component of an online guide prepared by the MOL to
    assist employers and employees, the MOL indicates that the employer must post
    the Form 1 on the first day of the notice period and does not state that the
    Form 1 must be posted on the first day of the statutory notice period. However,
    elsewhere the document indicates that the s. 60(1) freeze applies during the
    statutory notice period. As indicated above, the s. 60(1) freeze period is a notice
    period under section 57 or 58. Hence, reading the document as a whole, it is
    clear that the MOL regards the first day of the notice period as the first
    day of the statutory notice period. This document does not suggest that the
    Manual was not properly revised in 2000. Rather, it demonstrates that the MOL
    has consistently taken the view that [t]he notice required under [s. 58(1)]
    in s. 58(4) is the statutorily-required notice period.

[72]

Thus,
    the legislative history of the ESA and the MOLs interpretation of the
    statutory provisions at issue in this appeal support my conclusion that an
    employers obligation to file a Form 1 notice arises only at the beginning of
    the minimum statutory notice period.

(v)

Rizzo
and Statutory
    Interpretation in the Employment Context

[73]

Finally,
    my interpretation is consistent with the principles of statutory interpretation
    endorsed by the Supreme Court of Canada in the employment context. At para. 72
    of his reasons, the motion judge includes among these that in the event of
    ambiguity, the statutory interpretation which provides the greater benefit to
    employees is to be preferred. In my view, the motion judges flawed application
    of that principle drove his interpretation of the ESA.

[74]

The
    principle that the statutory interpretation which provides the greater benefit
    to employees is to be preferred can be traced to
Rizzo
, which
    involved the interpretation of an earlier version of Ontarios employment
    standards legislation. The question in
Rizzo
was whether the
    termination of employment caused by the bankruptcy of an employer gave rise to
    a claim provable in bankruptcy for termination and severance pay. In other
    words, the issue in
Rizzo
was whether former employees were entitled
    to the minimum benefits provided for by the ESA.

[75]

While
    the plain language of the relevant sections of the ESA suggested that
    termination pay and severance pay were payable only when the employer terminated
    the employment, and not when the employment was terminated on bankruptcy by
    operation of law, the Supreme Court concluded otherwise. The Supreme Court held
    that in coming to a different conclusion, this court had erred in focusing too
    much on the plain meaning of the sections, paying insufficient attention to the
    scheme and object of the ESA or the intention of the legislature, and failing
    to read the relevant words in context.

[76]

In
    a key passage at para. 36, Iacobucci J. wrote:

Finally, with regard to the scheme of the legislation, since
    the ESA is a mechanism for providing minimum benefits and standards to protect
    the interests of employees, it can be characterized as benefits-conferring
    legislation. As such, according to several decisions of this Court, it ought to
    be interpreted in a broad and generous manner.
Any doubt
    arising from difficulties of language should be resolved in favour of the
    claimant.
[Emphasis added.]

[77]

This
    principle does not apply here. Section 58 is not ambiguous. Interpreting s. 58
    in a broad and generous manner, it is clear that [t]he notice required under
    [s. 58(1)] in s. 58(4) is the statutorily-required eight-week notice period.
    However, even if it could be said that doubt arises from difficulties of
    language in s. 58,
Rizzo
does not require a different result.

[78]

Read
    in context,
Rizzo
does not direct that any doubt arising from
    difficulties of language should be resolved in favour of the employee, even
    where to do so would be inconsistent with the scheme of the ESA, its object,
    and the intention of the legislature. As
Machtinger
states, and
Rizzo
acknowledges, the object of the ESA is the provision of minimum benefits and
    standards to employees. In
Rizzo
, the Supreme Court interpreted the
    provisions of the ESA at issue to ensure the provision of the minimum statutory
    benefits to former employees.

[79]

However,
Rizzo
does not require an interpretation in favour of employees that
    runs counter to the basic principles of statutory interpretation: see
Novaquest
    Finishing Inc. v. Abdoulrab
, 2009 ONCA 491, 95 O.R. (3d) 641, at paras.
    59-60. The respondents in this case argue for an interpretation of the ESA that
    is inconsistent with the scheme and object of the ESA; that cannot be
    reasonably supported on a textual analysis; and that would increase the
    benefits to which former employees are entitled beyond the statutory minimums
    established by the ESA.

[80]

For
    these reasons, I conclude that the motion judge erred in finding that the Form
    1 notice had to be given on April 17, 2014.

(d)

The
consequence of late delivery of the Form 1
    notice

[81]

The motion judge held, at para. 84, that the effect of s. 58(4)
    was that the notices of termination sent prior to CTS giving Form 1 notice were
    deemed for all purposes not to have been given. He went on to conclude that CTS
    was not entitled to credit for working notice based on contract law principles.

[82]

In my view, the consequence of failing to give adequate Form 1
    notice is spelled out in s. 58(4). It makes it clear that the consequence of
    breaching s. 58(2)(a) is that [t]he notice required under [s. 58(1)]  not
    any greater period of notice  is deemed not to have been given until the
    Director receives Form 1 notice. It is unnecessary to touch on contract law
    principles. Correctly interpreting [t]he notice required under [s. 58(1)] as
    the eight-week, statutorily-required minimum notice, that eight-week minimum
    notice is deemed not to have been given by CTS until May 12, 2015.

[83]

CTS acknowledges that since it provided the Form
    1 to the Director 12 days later than the beginning of the statutory notice, it
    is not entitled to credit for 12 days of notice for each member of the class.
Thus,
    the employees are each entitled to 12 days of pay.

IV.

DID THE MOTION JUDGE ERR BY INVALIDATING PARTS OF THE WORKING NOTICE
    PERIOD AS A RESULT OF OVERTIME HOURS?

(a)
The motion judges reasons

[84]

The
    motion judge accepted that CTSs strategy was to ramp up production at the
    Streetsville plant in order to bank an inventory of parts which could be
    supplied to customers after the closure of the Streetsville plant and until it
    had manufacturing capacity in Mexico.

[85]

The
    motion judge noted that s. 17(1)(b) of the ESA provides that no employer shall
    require or permit an employee to work more than  48 hours in a work week but
    that s. 17(3) creates an exception if the employee has agreed in writing to
    work additional hours and the employer has obtained the approval of the
    Director allowing the employee to work more than 48 hours per week.

[86]

There
    was evidence that a group of hourly paid production employees worked
    approximately 55 hours a week during the notice period, contrary to s. 17(1)(b)
    of the ESA. The employees were not pressured to work and wanted to make more
    money.

[87]

There
    was also evidence 18 key employees were forced to work overtime up to 60 hours
    a week. They were told that their job required that they stay and work overtime
    and that they had no option.

[88]

The
    motion judge agreed with the New Brunswick Court of Appeal in
Medis Health
    and Pharmaceutical Services Inc. v. Bramble
(1999), 214 N.B.R. (2d) 111
    (C.A.), that, in determining whether the employer is entitled to credit for
    working notice, it is relevant to consider the quality of the opportunity given
    the employee to find new employment.

[89]

The motion judge wrote, at paras. 111 to 113:

Take the extreme example of an employer in the position of CTS
    that had employees work 16 hours a day during their notice period in order to
    attain its corporate objectives. That employer surely could not claim credit
    for working notice. To do so would be tantamount to saying, You had eight
    hours a day to look for new employment and if you frittered it away sleeping,
    that was your choice.

The onus is on CTS to prove that it provided reasonable advance
    notice of termination. I have concluded that there is both a quantitative and a
    qualitative component as to what is reasonable. To look for work, an employee
    needs both a reasonable aggregate notice period and a reasonable amount of time
    in the week. Requiring or condoning employees to work in excess of ESA maximums
    was not only unreasonable, it was unlawful. CTS has not discharged its onus to
    prove that it provided for reasonable working notice during any week in which
    an employee worked in excess of ESA maximums. It follows that CTS is not
    entitled to credit for working notice for any week in which a plaintiff, not
    exempt from the ESA overtime provisions, worked in excess of the maximums.

There will have to be an individual assessment as to whether
    any of the 18 employees referred to are exempt from the ESA overtime
    provisions.
[4]

If any are exempt, I conclude that CTS is not entitled to credit for
    working notice for any week in which the overtime worked had a significant
    adverse effect on the ability of the employee to look for new employment. Being
    forced to work overtime to that extent renders the CTS working notice
    unreasonable. [Footnote added.]

(b)
The appellants submissions

[90]

The
    appellants argue that the motion judge erred in considering the quality of the
    opportunity given to the employees to find new employment. They submit that the
    quality of the opportunity is not a relevant factor in the determination of
    reasonable notice. To hold otherwise, they argue, would among other things be
    in conflict with
Taylor v. Dyer Brown
(2004), 73 O.R. (3d) 358 (C.A.),
    where this court found that the determination of reasonable notice is the same
    regardless of whether working notice or pay in lieu of notice is provided. They
    also argue that the motion judges decision has the potential of creating a
    windfall for employees who can accept and be compensated for overtime, but then
    seek to invalidate their working notice after the fact.

[91]

In the alternative, they challenge the motion judges finding of
    fact that 18 key employees were forced to work overtime up to 60 hours per
    week.

(c)
Analysis

[92]

I
    reject the appellants submissions.

[93]

I
    agree with the motion judge that in determining whether the employer is
    entitled to credit for working notice, it is relevant to consider the quality
    of the opportunity given to the employee to find new employment. As
Bramble
explains, at para. 80, the primary objective of reasonable notice is to provide
    the dismissed employee with an opportunity to obtain alternate employment: see
    also
Evans v. Teamsters Local Union No. 31
, 2008 SCC 20, [2008] 1
    S.C.R. 661, at para. 28; and
Taylor
, at para. 14.

[94]

That
    said, inherent in the concept of working notice is the requirement that the
    employee continue to work during the notice period. The fact that the normal
    demands of the employees position leave the employee with less time to look
    for alternate work than if the employee were not working does not warrant
    denying the employer credit for a portion of the period of working notice.
    Normally, an employee will be able to seek an alternate position, even though
    he or she continues to work. Indeed, the fact that the employee is employed
    when job searching may in some circumstances better position the employee in
    approaching prospective employers.

[95]

However,
    exceptional workplace demands on the employee during the notice period that
    negatively affect his or her ability to seek alternate work, if not consensual,
    may warrant disentitling an employer to credit for some or all of the period of
    working notice provided. In my view, overtime worked in violation of the ESA
    constitutes such an exceptional demand and cannot be considered consensual.
    As noted above, s. 5(1) of the ESA makes any contracting out or waiver of an
    employment standard void. Thus, an employees consent to work overtime in
    violation of the ESA is not effective.

[96]

Contrary
    to the appellants submission, considering the quality of the opportunity given
    to the employee to find new employment in determining the period of reasonable
    notice is not contrary to
Taylor
.

[97]

In
Taylor
, an employer first gave an employee notice of termination,
    providing her with 18 months working notice. The employer subsequently gave a
    second notice to the employee, providing for her immediate dismissal with six
    months pay in lieu of notice. The trial judge found that only the first notice
    was valid, but awarded the employee 12 months pay in lieu of notice.

[98]

This
    court rejected the proposition that an employee entitled to 18 months working
    notice is entitled to a shorter period of notice, when calculating payment in
    lieu of notice, because it is easier for an employee to find alternate work
    when not fulfilling the terms of working notice. It explained that payment in
    lieu of notice compensates an employee for the employers breach of its
    contractual obligation to provide notice of termination. Thus, the period of
    notice to which the employee is entitled determines the amount of pay in lieu
    of notice. As the employee was entitled to 18 months notice of termination,
    the employee was entitled to 18 months pay in lieu of notice. It was in this
    context that it stated, at para. 14, that there is no functional difference at
    law between working notice and payment in lieu of notice.

[99]

Here,
    the issue is whether the working notice given was reasonable. Considering the
    quality of the employees opportunity to find alternate work during the notice
    period given by the employer is not contrary to
Taylor
.

[100]

Nor does the
    motion judges decision create a windfall for employees. Had CTS not forced
    the 18 key employees to work overtime, and had it simply complied with the
    overtime provisions of the ESA by obtaining the hourly paid employees written
    agreement to work the additional hours and the Directors approval, the result
    would have been different.

[101]

Finally,
    there is no basis to interfere with the motion judges finding that CTS
    forced the 18 key employees to work excessive overtime. The motion judge was
    entitled to prefer the evidence of Mr. Lipton, the CTS Operations and Technical
    Service Manager. He gave evidence that he told the 18 employees that CTS could
    force them to work overtime up to 60 hours a week. The motion judge preferred
    his evidence to the evidence of the CTS executive overseeing the plant shutdown
    and CTSs Human Resources Generalist that the working overtime was voluntary.

[102]

I
    would not interfere with the decision of the motion judge regarding the 18 key
    employees who were forced to work overtime and the hourly paid employees who worked
    overtime in breach of the ESA overtime provisions.

V.

WAS THE APRIL 17, 2014 NOTICE OF TERMINATION TO FIVE EMPLOYEES WHO
    WORKED MORE THAN 13 WEEKS BEYOND THEIR ORIGINAL TERMINATION DATE EFFECTIVE?

[103]

I agree with the
    motion judge that the April 17, 2014 notice of termination was not effective in
    the case of the five employees who worked more than 13 weeks beyond their
    original termination date.

[104]

Section 6(1) of
    the Regulation permits an employer to continue to provide temporary work to
    employees for up to 13 weeks after the termination date specified in the notice
    of termination given to an employee without giving a further notice of
    termination:

6(1) An employer who has given an employee notice of
    termination in accordance with the Act and the regulations may provide
    temporary work to the employee without providing a further notice of
    termination in respect of the day on which the employees employment is finally
    terminated if that day occurs not later than 13 weeks after the termination
    date specified in the original notice.

(2) The provision of temporary work to an employee in the
    circumstances described in subsection (1) does not affect the termination date
    as specified in the notice or the employees period of employment.

[105]

The Regulation
    contemplates a single period of temporary work that is not to exceed 13 weeks.
    If temporary work exceeds that duration, fresh notice is required. Such notice
    must be clear and unambiguous and include the final termination date:
Di
    Tomaso v. Crown Metal Packaging Canada LP
, 2011 ONCA 469, 282 O.A.C. 134,
    at paras. 20, 21.

[106]

After April 17,
    2014, Ms. Aultman and four other employees received a series of letters from
    CTS, asking for their agreement to continue to work first during, and then
    subsequently beyond, the 13-week period permitted by the ESA. The parties
    agreed that the circumstances of Ms. Aultman are similar to the other four
    employees and that the decision regarding her entitlement would govern the
    others.

[107]

The first letter
    indicated that Ms. Aultman would be paid $500 if she worked until the end of
    the 13-week period. In the case of Ms. Aultman, the final letter dated
    September 18, 2015, advised of a final extension of her termination date and
    asked her to work until October 30, 2015. On September 28, 2015, CTS paid her
    the $500 she had been offered for agreeing to work for the first 13-week
    extension.

[108]

The motion judge
    considered
Di Tomaso
and properly held that CTS is entitled to credit
    for providing working notice to these five employees only from the date of the
    letter (September 18, 2015, in the case of Ms. Aultman) providing them with
    notice of their actual termination date. The cumulative effect of the multiple
    extensions created uncertainty as to when their employment would terminate and
    only on receipt of these final letters did the five employees know when their
    employment would actually terminate.

[109]

I reject the
    appellants argument that their April 17, 2014 notice remained effective
    because, unlike in
Di Tomaso
where the employer unilaterally extended
    the separation date, the five employees were offered the choice of whether or
    not to accept the extensions and were offered and accepted $500 for agreeing to
    the first, 13-week extension. The $500 payment was only offered in connection
    with the initial 13-week extension, which was permitted by the ESA. More
    importantly, their argument ignores the effect of s. 6(1) of the Regulation.

[110]

Section 6(1) of
    the Regulation permits an employer to provide temporary work to an employee
    for up to 13 weeks after the employees termination date. The work is
    temporary work after, and does not extend the employees termination date. It
    is clear from s. 6(1) of the Regulation that if an employer provides further
    work to an employee, beyond the 13-week period, the employer changes the
    employees termination date and a further notice of termination is required.

VI.

DISPOSITION AND COSTS

[111]

For these
    reasons, I would allow the appeal in part. In light of the split result, I
    would order that there be no costs of the appeal. At the time of the hearing,
    costs of the motion below had not been determined. Regarding costs below, I would
    permit the parties to provide written submissions not in excess of three pages
    on the issue of the costs of the motion below within ten days. If no such
    further submissions be provided, I would order that there be no costs of the
    motion below.

Released: AH SEP 19 2018

Alexandra Hoy
    A.C.J.O.

I agree D.M. Brown
    J.A.

I agree Gary Trotter
    J.A.

Appendix A
     Statutes and regulations

Employment Standards Act
, 2000, S.O. 2000, c.
    41

Definitions

1
(1)

In this Act
,

employment standard means a requirement or
    prohibition under this Act that applies to an employer for the benefit of an
    employee; (norme demploi)

statutory notice period means,

(a) the period of notice of termination required
    to be given by an employer under Part XV, or

(b) where the employer provides a greater amount
    of notice than is required under Part XV, that part of the notice period ending
    with the termination date specified in the notice which equals the period of
    notice required under Part XV; (délai de préavis prévu par la loi)

To whom Act applies

3
(1) Subject to subsections (2) to
    (5), the employment standards set out in this Act apply with respect to an
    employee and his or her employer if,

(a) the employees work is to be performed in
    Ontario; or

(b) the employees work is to be performed in
    Ontario and outside Ontario but the work performed outside Ontario is a
    continuation of work performed in Ontario.  2000, c. 41, s. 3 (1).

No contracting out
5
(1) Subject to subsection (2), no
    employer or agent of an employer and no employee or agent of an employee shall
    contract out of or waive an employment standard and any such contracting out or
    waiver is void.  2000, c. 41, s. 5 (1).

Limit on hours of work
17
(1) Subject to subsections (2)
    and (3), no employer shall require or permit an employee to work more than,
(a) eight hours in a day
    or, if the employer establishes a regular work day of more than eight hours for
    the employee, the number of hours in his or her regular work day; and
(b) 48 hours in a work
    week.  2004, c. 21, s. 4.
Exception: hours in a day
(2) An employees hours of work may exceed the limit
    set out in clause (1) (a) if the employee has made an agreement with the
    employer that he or she will work up to a specified number of hours in a day in
    excess of the limit and his or her hours of work in a day do not exceed the
    number specified in the agreement.  2004, c. 21, s. 4.
Exception: hours in a work week
(3) An employees hours of work may exceed the limit
    set out in clause (1) (b) if,
(a) the employee has
    made an agreement with the employer that he or she will work up to a specified
    number of hours in a work week in excess of the limit;
(b) the employer has
    received an approval under section 17.1 that applies to the employee or to a
    class of employees that includes the employee; and
(c) the employees hours
    of work in a work week do not exceed the lesser of,
(i) the number of
    hours specified in the agreement, and
(ii) the number of
    hours specified in the approval.  2004, c. 21, s. 4.

No termination without notice
54
No employer shall terminate the
    employment of an employee who has been continuously employed for three months
    or more unless the employer,
(a) has given to the employee written notice of
    termination in accordance with section 57 or 58 and the notice has expired; or
(b) has complied with section 61.  2000, c. 41, s.
    54.

Employer notice period
57
The notice of termination under
    section 54 shall be given,
(a) at least one week before the termination, if
    the employees period of employment is less than one year;
(b) at least two weeks before the termination, if
    the employees period of employment is one year or more and fewer than three
    years;
(c) at least three weeks before the termination,
    if the employees period of employment is three years or more and fewer than
    four years;
(d) at least four weeks before the termination, if
    the employees period of employment is four years or more and fewer than five
    years;
(e) at least five weeks before the termination, if
    the employees period of employment is five years or more and fewer than six
    years;
(f) at least six weeks before the termination, if
    the employees period of employment is six years or more and fewer than seven
    years;
(g) at least seven weeks before the termination,
    if the employees period of employment is seven years or more and fewer than
    eight years; or
(h) at least eight weeks before the termination,
    if the employees period of employment is eight years or more.  2000, c. 41, s.
    57.
Notice, 50 or more employees
58
(1) Despite section 57, the
    employer shall give notice of termination in the prescribed manner and for the
    prescribed period if the employer terminates the employment of 50 or more
    employees at the employers establishment in the same four-week period.  2000,
    c. 41, s. 58 (1).
Information
(2) An employer who is required to give notice under
    this section,
(a) shall provide to the Director the prescribed
    information in a form approved by the Director; and
(b) shall, on the first day of the notice period,
    post in the employers establishment the prescribed information in a form
    approved by the Director.  2000, c. 41, s. 58 (2).
Content
(3) The information required under subsection (2) may
    include,
(a) the economic circumstances surrounding the
    terminations;
(b) any consultations that have been or are
    proposed to take place with communities in which the terminations will take
    place or with the affected employees or their agent in connection with the
    terminations;
(c) any proposed adjustment measures and the number
    of employees expected to benefit from each; and
(d) a statistical profile of the affected
    employees.  2000, c. 41, s. 58 (3).
When notice effective
(4) The notice required under subsection (1) shall be
    deemed not to have been given until the Director receives the information
    required under clause (2) (a).  2000, c. 41, s. 58 (4).
Posting
(5) The employer shall post the information required
    under clause (2) (b) in at least one conspicuous place in the employers
    establishment where it is likely to come to the attention of the affected
    employees and the employer shall keep that information posted throughout the
    notice period required under this section.  2000, c. 41, s. 58 (5).

Requirements during notice period
60
(1) During a notice
    period under section 57 or 58, the employer,
(a) shall not reduce the employees
    wage rate or alter any other term or condition of employment;
(b) shall in each week pay the
    employee the wages the employee is entitled to receive, which in no case shall
    be less than his or her regular wages for a regular work week; and
(c) shall continue to make whatever
    benefit plan contributions would be required to be made in order to maintain
    the employees benefits under the plan until the end of the notice period.
    2000, c. 41, s. 60 (1).
No regular work week
(2) For the purposes of clause (1) (b),
    if the employee does not have a regular work week or if the employee is paid on
    a basis other than time, the employer shall pay the employee an amount equal to
    the average amount of regular wages earned by the employee per week for the
    weeks in which the employee worked in the period of 12 weeks immediately
    preceding the day on which notice was given.  2001, c. 9, Sched. I, s. 1 (13).

Pay instead of notice
61
(1) An employer may
    terminate the employment of an employee without notice or with less notice than
    is required under section 57 or 58 if the employer,
(a) pays to the employee termination
    pay in a lump sum equal to the amount the employee would have been entitled to
    receive under section 60 had notice been given in accordance with that section;
    and
(b) continues to make whatever
    benefit plan contributions would be required to be made in order to maintain
    the benefits to which the employee would have been entitled had he or she
    continued to be employed during the period of notice that he or she would
    otherwise have been entitled to receive.  2000, c. 41, s. 61 (1); 2001, c. 9,
    Sched. I, s. 1 (14).

Deemed active employment
62
(1) If an employer
    terminates the employment of employees without giving them part or all of the
    period of notice required under this Part, the employees shall be deemed to
    have been actively employed during the period for which there should have been
    notice for the purposes of any benefit plan under which entitlement to benefits
    might be lost or affected if the employees cease to be actively employed.
    2000, c. 41, s. 62 (1).
.
Termination without notice
65
(4) If an employer terminates the
    employment of an employee without providing the notice, if any, required under
    section 57 or 58, the amount of severance pay to which the employee is entitled
    shall be calculated as if the employee continued to be employed for a period
    equal to the period of notice that should have been given and was not.  2000,
    c. 41, s. 65 (4).

O. Reg. 288/01: Termination and Severance of
    Employment
Notice, 50 or more employees
3.
(1) The following periods are
    prescribed for the purposes of subsection 58 (1) of the Act:
1. Notice shall be given at
    least eight weeks before termination if the number of employees whose
    employment is terminated is 50 or more but fewer than 200.
2. Notice shall be given at
    least 12 weeks before termination if the number of employees whose employment is
    terminated is 200 or more but fewer than 500.
3. Notice shall be given at
    least 16 weeks before termination, if the number of employees whose employment
    is terminated is 500 or more.  O. Reg. 288/01, s. 3 (1).
(2) The following information is prescribed as the
    information to be provided to the Director under clause 58 (2) (a) of the Act
    and to be posted under clause 58 (2) (b) of the Act:
1. The employers name and
    mailing address.
2. The location or
    locations where the employees whose employment is being terminated work.
3. The number of employees
    working at each location who are paid,
i. on an hourly
    basis,
ii. on a salaried
    basis, and
iii. on some other
    basis.
4. The number of employees
    whose employment is being terminated at each location who are paid,
i. on an hourly
    basis,
ii. on a salaried
    basis, and
iii. on some other
    basis.
5. The date or dates on
    which it is anticipated that the employment of the employees referred to in
    paragraph 4 will be terminated.
6. The name of any trade
    union local representing any of the employees whose employment is being
    terminated.
7. The economic
    circumstances surrounding the terminations.
8. The name, title and
    telephone number of the individual who completed the form on behalf of the
    employer.  O. Reg. 288/01, s. 3 (2).
(3) The employer shall provide the information
    referred to in subsection (2) to the Director by setting it out in the form
    approved by the Director under clause 58 (2) (a) of the Act and delivering the
    form to the Employment Practices Branch of the Ministry of Labour between 9
    a.m. and 5 p.m. on any day other than a Saturday, Sunday or other day on which
    the offices of the Branch are closed.  O. Reg. 288/01, s. 3 (3).

Temporary work, 13-week period
6.
(1) An employer who has given an
    employee notice of termination in accordance with the Act and the regulations
    may provide temporary work to the employee without providing a further notice
    of termination in respect of the day on which the employees employment is
    finally terminated if that day occurs not later than 13 weeks after the
    termination date specified in the original notice.  O. Reg. 288/01, s. 6 (1).
(2) The provision of temporary work to an employee in
    the circumstances described in subsection (1) does not affect the termination
    date as specified in the notice or the employees period of employment.  O.
    Reg. 288/01, s. 6 (2).

[1]
Ministry of Labour,
Time for Change: Ontarios Employment
    Standards Legislation
(Consultation Paper) (Queens
    Printer for Ontario, 2000) (the Consultation Paper).

[2]
Ministry of Labour Employment Practices Branch,
Employment Standards Act,
    2000

Policy and Interpretation Manual
, 2d ed. (Scarborough:
    Carswell, 2001) (the Manual).

[3]

Interestingly, the 2017 version of the MOLs
    Manual states that [t]he obligations set out in [s. 60(1)] apply only to the
    statutory notice period. Where an employer gives notice that is greater in
    length than the statutory notice, these obligations will not apply to the part
    of the notice period that precedes the statutory notice period. Similarly, the
    MOL document entitled Termination and Severance, which forms part of the MOL
    online guide referred to by the motion judge, describes the s. 60 freeze as
    applying during the statutory notice period. I discuss both the MOL Manual and
    Termination and Severance document in more detail below.

[4]

"[A] person whose work is supervisory or managerial in
    character" is exempt from ss. 17-19 of the ESA, including the overtime
    requirements: O. Reg. 285/01, s. 4(1)(b).


COURT OF APPEAL FOR ONTARIO

CITATION: 1704604 Ontario Ltd. v. Pointes Protection
    Association, 2018 ONCA 853

DATE: 20181024

DOCKET: C62231

Doherty, Brown and Huscroft JJ.A.

BETWEEN

1704604 Ontario Ltd.

Plaintiff (Respondent)

and

Pointes Protection Association, Peter Gagnon, Lou
    Simionetti, Patricia Grattan, Gay Gartshore, Rick Gartshore and Glen Stortini

Defendants (Appellants)

Mark Wiffen, for the appellants

J. Paul R. Cassan and Tim J. Harmar, for the respondent

Heard: December 19, 2016, and June 27, 2017

On appeal from the order of Justice
Edward
    E.
Gareau of the Superior Court of Justice, dated May 9, 2016, with
    reasons reported at 2016 ONSC 2884, 84 C.P.C. (7th) 298.

COSTS ENDORSEMENT

[1]

In our view the costs presumptions in s. 137.1(7) and (8)
    of the
Court of Justice Act,
R.S.O. 1990, c. C.43,

do not apply on appeal. Those
    presumptions affect significant departures from the principles generally
    governing cost awards on appeals. It would take clear statutory language to
    warrant that departure. The language of the provisions, which does not
    expressly refer to costs on appeals, does not have that clarity.

[2]

In holding that s. 137.1 (7)(8) are not applicable on appeal
    we do not mean to say that the principles reflected in those provisions have no
    role in this courts exercise of its discretion with respect to costs in
    appeals from motions brought under s. 137.1. This courts discretion on costs
    is broad enough to reflect the justice of the individual case and where
    appropriate to have due regard to the policy underlying the cost regime created
    by s. 137.1(7)(8).

[3]

In so far as the costs of the motion are concerned, we would
    apply the presumption in s. 137.1(7). The appellants should have their costs on
    a full indemnity basis fixed in the amount of $30,800, inclusive of taxes and
    disbursements. The appellants should have their costs of the appeal on a
    partial indemnity basis fixed at $17,147.57.

[4]

There are no grounds for an order of costs as against the
    non-parties, Dr. Patricia Avery and Mr. Jeff Avery. No such order will be made.

Doherty J.A.

David Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1802248 Ontario Ltd. (Anytime Fitness) v. Allen,
    2018 ONCA 808

DATE: 20181005

DOCKET: C65240

Hourigan, Miller and Trotter JJ.A.

BETWEEN

1802248 Ontario Ltd. carrying on business as
    Anytime Fitness, Ryan Johnson, and Tatiana Johnson

Plaintiffs (Respondents)

and

Michael Allen, Clark Kent, 2487048 Ontario
    Limited and Orion Fitness Inc.

Defendants (Appellants)

Edward Spong, for the appellants

Scott R. Fairley, for the respondents

Heard: October 3, 2018

On appeal from the judgments of Justice R. Cary Boswell
    of the Superior Court of Justice, dated November 27, 2017, with reasons
    reported at 2017 ONSC 7041, and dated March 7, 2018, with reasons reported at
    2018 ONSC 1561.

REASONS FOR DECISION

[1]

The individual respondents (the Johnsons) operated a fitness club
    business that they owned through 1802248 Ontario Ltd. (180). The individual
    appellants expressed an interest in purchasing the business. The parties came
    to terms. The respondents executed an Asset Purchase Agreement on October 30,
    2015 with 2487048 Ontario Limited (248) as the purchaser, acquiring 180s
    equipment, goodwill, and interest in its leased premises. This agreement was
    drafted without the benefit of counsel.

[2]

248 is wholly owned and controlled by the individual appellants, and was
    incorporated for the sole purpose of acquiring the assets of 180.

[3]

The appellants took possession of the premises and equipment and began
    operating the business as of November 1, 2015. Under the terms of the
    agreement, 248 was to assume 180s obligation under the lease, and, in
    accordance with the terms of the Asset Purchase Agreement, assume the
    respondents obligations under two loans/lease with respect to certain
    Equipment being assumed by the Buyer in the amount of approximately Fifty Eight
    Thousand Dollars ($58,000), with the exact amount to be determined by a current
    statement to be provided by the Seller at the Time of Closing.

[4]

On November 12, 2015, the respondents entered into an agreement with the
    landlord of the fitness club premises for the assumption of the lease by 248. However,
    180 remained jointly and severally liable for the tenants obligations for the
    remainder of the term of the lease. The landlord provided certain rent
    abatement incentives to 248 that would be forfeit in the event that 248 failed to
    pay rent over a six month period. The Johnsons remained personally liable on
    the lease in the event that 248 defaulted during these six months. A default
    would also trigger the Johnsons liability under a previous rent deferment
    agreement between the Johnsons, 180, and the landlord signed in March 2015. Following
    the six month period, Orion Fitness Inc., a corporation entirely controlled by
    the individual appellants, would assume the Johnsons place as guarantor.

[5]

248 was unable to get approval from the respondents bank to assume 180s
    two business loans, one for equipment, and the other for leasehold improvements.
    As a result, the Johnsons arranged with the appellants for the Johnsons to
    repay the loans, in exchange for a promissory note from 248. That is, the
    respondents agreed to finance the appellants acquisition of the business.

[6]

Now in possession of the premises and operating the fitness club, the
    appellants refused to sign the promissory note, placed a stop payment on a
    cheque provided to the respondents, and raised objections about whether the
    full amount of the respondents loans was genuinely related to the business.
    Further, 248 immediately defaulted on its obligations under the lease,
    triggering the Johnsons obligation to indemnify the landlord.

[7]

The appellants took the respondents business, paid nothing for it, and,
    by failing to pay rent under the assumed lease, created substantial financial obligations
    for the respondents.

[8]

The motion judge was satisfied that there was no genuine issue for trial
    with respect to 248s obligations under the Asset Purchase Agreement and some
    portion of the claim related to rent. He found 248 liable and awarded judgment
    against it in the amount of $85,637.97.  The motion judge ordered a mini trial
    on the question of liability for rent for the period of November 2015 to
    January 2016. He further ordered that the issue of the individual appellants
    personal liability be adjourned to the mini trial, on the grounds that the respondents
    had not pleaded the basis for personal liability and would need to amend their
    pleadings.

[9]

The respondents subsequently advised the motion judge that they had
    already amended their Statement of Claim by the time of the hearing of the
    summary judgment motion, but had inadvertently filed the unamended copy with
    their motion materials. After a supplementary hearing on the issue of personal
    liability, the motion judge found that the individual appellants were the
    controlling minds of 248, and had used 248 to engage in improper and dishonest
    conduct. He made the following finding:

[The individual appellants] never intended to make any payment
    to the [respondents]. They dealt with the [respondents] in an entirely
    dishonest manner and have simply converted the [respondents] assets to
    themselves. Their actions have been high-handed and deceitful.

[10]

Having
    satisfied himself that the appellants conduct satisfied the criteria given in
Transamerica
    Life Insurance Company of Canada v. Canada Life Assurance Company et al.
(1996), 28 O.R. (3d) 423 (Gen. Div.), affd [1997] O.J. No. 3754 (C.A.), for
    piercing the corporate veil, the motion judge granted judgment against the
    individual appellants in the amount of $58,697.06.

[11]

The
    appellants raise three grounds of appeal, none of which have merit.

[12]

First,
    the appellants argue that the motion judge erred in his interpretation of the Asset
    Purchase Agreement. Specifically, they argue that this agreement only required
    payment for the equipment loan, in the amount of $18,582.87 and not for the leasehold
    improvements loan.

[13]

The
    motion judge made no error in observing the ambiguity in the language of the Asset
    Purchase Agreement, namely an apparent mismatch between the reference to
    equipment and a required payment in an amount far in excess of what would have
    been required for the payment of the equipment loan only.  He applied the only
    contractually reasonable interpretation of it: that the purchase price was
    approximately $58,000 and included not only equipment but leasehold
    improvements.

[14]

Second,
    the appellants argue that the motion judge erred in finding that 248s breach
    of the Asset Purchase Agreement made it liable for damages the respondents
    incurred when they were unable to pay rent to the landlord under the Assignment
    Agreement. The appellants argue that the obligations the respondents incurred
    under the lease were not a foreseeable consequence of breach when the parties executed
    the Asset Purchase Agreement.

[15]

There
    is no merit to this argument. The appellants breached the Asset Purchase
    Agreement by failing to make any of the required payments. It was entirely
    foreseeable that a consequence of this breach would be that the respondents
    would be unable to meet their obligations to the landlord. It was also foreseeable
    that this would cause the respondents to forfeit the negotiated rent abatement
    and become liable for the deferred rent under the March 2015 rent deferment
    agreement.

[16]

Finally,
    the appellants argue that there is no evidence of the individual appellants
    doing anything that could be construed as fraudulent conduct.

[17]

To
    the contrary, the motion judge ably chronicled the individual appellants
    course of action, and drew the available inference that the appellants took the
    respondents business without intending to pay for it. These findings were
    available on the evidence before the motion judge, and there is no basis upon
    which we could interfere with the motion judges findings.

DISPOSITION

[18]

The
    appeal is dismissed. The respondents are awarded costs in the amount of $12,500
    inclusive of disbursements and HST.

C.W. Hourigan J.A.

B.W. Miller J.A.

Gary T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Able Translations Ltd. v. Express International
    Translations Inc., 2018 ONCA 854

DATE: 20181024

DOCKET: C63055

Doherty, Brown and Huscroft JJ.A.

BETWEEN

Able Translations Ltd.

Plaintiff

(Appellant)

and

Express International Translations Inc. and
    Philippe Vitu

Defendants

(Respondents)

Jeffrey Radnoff, for the appellant

David J. McGhee, for the respondents

Heard: June 29, 2017

On appeal from the order of Justice Sean F. Dunphy of the
    Superior Court of Justice, dated November 8, 2016, with reasons reported at
    2016 ONSC 6785, 410 D.L.R. (4th) 380.

COSTS ENDORSEMENT

[1]

The respondents were successful on the appeal and are entitled to costs
    on the appeal.

[2]

While we do not consider the presumption in s. 137.1(7) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43
as
    applicable on appeal, we do have regard to the nature of the suit in fixing
    costs of the appeal. In our view, this suit had the markings of a true SLAPP.
    We award costs of the appeal on a full indemnity basis and fix those costs at
    $40,000, inclusive of taxes and disbursements.

Doherty J.A.

David Brown J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ainslie v. O'Neill, 2018 ONCA 858

DATE: 20181024

DOCKET: C65200

Feldman, Pepall and Pardu JJ.A.

BETWEEN

Margaret Kent Ainslie

Applicant

(Respondent in Appeal)

and

Kevin Phillip ONeill

Respondent

(Appellant in Appeal)

Robert Shawyer and Andrew Sudano, for the appellant

Margaret Kent Ainslie, in person

Caroline Brett and Jennifer Luong, for the intervenor
    the Attorney General of Ontario

Heard and released orally: October 19, 2018

On appeal from the
    order of Justice Kiteley of the Superior Court of Justice, dated March 1, 2018.

REASONS FOR DECISION

[1]

The appellant seeks to appeal the order of Kiteley J. dated March 1,
    2018, which dismissed the appellants motion for leave to bring a motion to
    change the final order of Harvison Young J., dated April 30, 2007, following a
    lengthy trial, with respect to child support, spousal support and s. 7
    expenses.

[2]

The order of Kiteley J. also stated that before the appellant brings any
    motion to change the final order, the appellant shall file proof with the court
    that he has complied with the judgment of Harvison Young J.

[3]

The appellant seeks to argue on the appeal that the order of Kiteley J.
    was unconstitutional.

[4]

The court raised with the parties by correspondence prior to the hearing
    whether the court could refuse to hear the appeal based on the Supreme Court of
    Canada decision in
Dickie v. Dickie
, [2007] 1 S.C.R. 346, where the
    court endorsed the dissenting reasons of Laskin J.A. in that case, and where
    the Supreme Court stated as follows in paras. 4 and 6 of its reasons:

4. Laskin J.A., in dissent, was of the view that
    the court had a discretion to refuse to entertain Dr. Dickies appeal and that,
    based on the record showing continuing disobedience with court orders, it
    should have exercised that discretion. Hence, he would have adjourned Dr.
    Dickies appeal until Dr. Dickie had taken steps to comply with the court
    orders below

6. In our view, the Court of Appeal had the
    authority to refuse to entertain Dr. Dickies appeal and, had it exercised its
    discretion as proposed by Laskin J.A. and for the reasons he gave, we would
    have found no basis to interfere with the result.

[5]

At the opening of the hearing, this court invited submissions from the
    parties as to whether the
Dickie
case should apply, and whether the
    court should exercise its discretion not to hear the appeal while the appellant
    remains in default of payment of the amounts ordered in the April 2007 judgment.

[6]

Counsel for the appellant submitted that this case should be
    distinguished from
Dickie
because the appellant has not been found in
    contempt. He also submitted that family law cases should be treated differently
    than commercial cases where there is default.

[7]

In our view, this is a case where the principle in
Dickie
is
    particularly applicable. Most recently Curtis J., after a four day enforcement
    hearing, made the following finding at para. 76(a):

The payor a) has repeatedly and intentionally avoided his
    responsibilities towards his children and his former spouse, over a great many
    years. He has demonstrated a long-term, wilful and deliberate disregard for his
    obligation to comply with court orders.

[8]

We have been advised today that the appellant has not complied with the
    order of Curtis J. following that hearing, the order being dated May 17, 2018.

[9]

In light of the long and continuing pattern of wilful default, we
    decline to entertain this appeal at this time and stay the hearing of the
    appeal until the appellant complies with the order of Curtis J., dated May 17,
    2018.

[10]

We
    note that Curtis J. included a provision at para. 85(f) which states:

This order does not limit or restrict the Director in pursuing
    any other available enforcement remedies for the enforcement of the support
    arrears or the ongoing spousal support payments due under the order.

[11]

That
    provision also remains in effect during the stay.

[12]

We
    also order $700 costs payable to Ms. Ainslie, which will also be payable as a
    condition of lifting the stay.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Aluminum Window Design Installations Inc. v. Grandview Living Inc., 2018 ONCA 838

DATE: 20181018

DOCKET:

M49535
    (C63782)

Benotto J.A. (Motion Judge)

BETWEEN

Aluminum Window Design
    Installations Inc.

Moving Party
(Respondent)

and

Grandview Living Inc.,
    John Matas and Gord Matas

Responding Party
(Appellants)

George Corsianos, for the appellants

Gregory N. Hemsworth, for the respondent

Heard: October 5, 2018

REASONS FOR DECISION

[1]

The appellants move to review the order of the Deputy Registrar
    dismissing the appeal for delay. The order under appeal struck the appellants statement
    of defence. The appellants received notice of the motion to strike the
    pleadings but did not attend. A brief overview of the facts follows.

The underlying action, the order appealed from, and the appeal

[2]

In August 2010, the respondent contracted to provide aluminum windows
    and glazing for the appellants condominium project. In July 2015, the
    respondent commenced an action against the appellants for unpaid work. The
    appellants served and filed a statement of defence in September 2015. From
    October 2015 to September 2016 the respondent attempted to arrange a discovery
    plan. Ultimately, on September 14, 2016, Master Muir granted an order establishing
    a discovery plan. The appellants failed to comply.

[3]

On February 9, 2017 the respondent properly served a notice of motion to
    strike the appellants pleadings.

[4]

The motion was returnable before Di Tomaso J. on April 20, 2017. The appellants
    filed no material on the motion and did not appear. The motion judge granted an
    order striking the appellants pleadings and noting the pleadings closed. The appellants
    and their counsel were immediately told about the order and provided with a
    copy.

[5]

On May 20, 2017 the appellants filed a Notice of Appeal of the order of
    April 20, 2017.

[6]

On June 20, 2017, the Deputy Registrar for the Court of Appeal for
    Ontario delivered a Notice of Intention to Dismiss the Appeal for Delay. The
    appeal was dismissed for delay on July 18, 2017 because the appellant had not
    perfected the appeal.

[7]

One year later, on July 30, 2018 the appellants filed a notice of motion
    to set aside the Deputy Registrars order dismissing the appeal and to extend
    the time for perfecting the appeal. By that time the respondent had obtained
    judgment on its claim and attempted to examine the appellants in aid of
    execution.

[8]

The appellants now seek to set aside the Deputy Registrars order and
    extend the time for perfection of the appeal.

Analysis

[9]

There are two reasons why this motion must fail: (i) the appellants are
    in the wrong court; and (ii) they do not meet the test for setting aside the Deputy
    Registrars decision.

Wrong Court

[10]

Rule
    37.14 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 provides
    as follows:

SETTING ASIDE, VARYING OR AMENDING ORDERS

Motion to Set Aside or Vary

37.14 (1) A party or other person who,

(a) is affected by an order obtained on
    motion without notice;

(b) fails to appear on a motion through
    accident, mistake or insufficient notice; or

(c) is affected by an order of a
    registrar,

may move to set aside or vary the order, by a notice of motion
    that is served forthwith after the order comes to the persons attention and
    names the first available hearing date that is at least three days after
    service of the notice of motion.

(2) On a motion under subrule (1), the court may set aside or
    vary the order on such terms as are just.

Order Made by Registrar

(3) A motion under subrule (1) or any other rule to set aside,
    vary or amend an order of a registrar may be made to a judge or master, at a
    place determined in accordance with rule 37.03 (place of hearing of motions).

Order Made by Judge

(4) A motion under subrule (1) or any other rule to set aside,
    vary or amend an order of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in accordance
    with rule 37.03 (place of hearing of motions).

[11]

The
    appellants did not attend the motion before Di Tomaso J. Therefore, the
    required procedure was to move to set aside the order before Di Tomaso J. on or
    immediately after April 20, 2017.

[12]

The
    appellants did not do that. Nor did the appellants move to set aside the
    judgment that was ultimately obtained. Rule 19.08 provides as follows:

19.08 (1) A judgment against a defendant who has been noted in
    default that is signed by the registrar or granted by the court on motion under
    rule 19.04 may be set aside or varied by the court on such terms as are just.

(2) A judgment against a defendant who has been noted in
    default that is obtained on a motion for judgment on the statement of claim
    under rule 19.05 or that is obtained after trial may be set aside or varied by
    a judge on such terms as are just.

(3) On setting aside a judgment under subrule (1) or (2) the
    court or judge may also set aside the noting of default under rule 19.03.

[13]

In
Halow Estate v. Halow
(2002), 59 O.R.

(3d) 211, this court

states at para. 7:

The appellant having been noted in
    default, no appeal lies to this court from Wright J.'s order striking his
    statement of defence For policy reasons discussed in
National Bank
, the appellant must exhaust
    his remedies in the court of first instance before an appeal will lie to this
    court. In this case, at the time the appellant filed his Notice of Appeal, he
    had already been noted in default. His remedy therefore lay under rule
    19.03.

[14]

Instead
    of applying under rr. 37 or 19, the appellants sought to appeal without exhausting
    their remedies in the court below. This court does not have jurisdiction to
    hear the appeal.

[15]

On
    this basis alone the appellants motion fails. However, even if this court had
    jurisdiction, the appellants have not met the test to set aside the order of
    the Deputy Registrar.

The Test to Set Aside the Order and Extend the Time to Perfect the Appeal

[16]

The
    following factors are considered when an appellant seeks to set aside the order
    and extend the time to perfect the appeal:

·

whether the moving party had an intention to appeal within the
    time for bringing an appeal;

·

the length of the delay and the explanation for the delay;

·

any prejudice to the respondent caused by the delay; and

·

the justice of the case.

See
Paulsson
    v. Cooper
, 2010 ONCA 21, [2010] O.J. No.
    123 at para. 2.

[17]

The
    delay of a year to perfect the appeal is long and largely unexplained. Essentially,
    the appellants allege that they left the action and the appeal in the hands of
    their then lawyer and should not be responsible for their lawyers conduct of
    the file. However, the email exchange on February 5, 2018 shows that the
    appellants were aware of the need to perfect.

[18]

The
    delay has prejudiced the respondent which has been attempting to execute on the
    judgment.

[19]

I
    turn to consider the justice of the case. Simply put, there is no merit to the
    appeal of the motion judges order. The appellants allege that the motion judge
    erred in granting the order on the basis that striking out a defence is a
    severe remedy and the motion judge ought to have provided the appellants with
    an opportunity to cure the default. It is not clear how this could have
    happened when the appellants did not attend the motion or request more time. This
    makes no procedural or practical sense particularly in the context of the appellants
    failure to abide by the court order for the discovery and production and their failure
    to appear or file materials for the motion. Therefore, there is nothing to
    suggest that the motion judge erred in fact or in law.

[20]

Accordingly, the motion is
    dismissed with costs payable to the respondent in the amount of $15,000
    inclusive of disbursements and HST.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Am-Stat Corporation v. Ontario, 2018 ONCA 877

DATE: 20181031

DOCKET: C65093

Doherty, van Rensburg and Hourigan JJ.A.

BETWEEN

Am-Stat Corporation

Plaintiff (Appellant)

and

Her Majesty the Queen in Right of Ontario
, and

Minister
    of Government and Consumer Services

Defendants (
Respondent
)

R.B. Moldaver Q.C., for the appellant

A. Jin, for the respondent

Heard and released orally: October 29, 2018

On appeal from the
    judgment of Justice Victoria R. Chiappetta of the Superior Court of Justice,
    dated March 8, 2018.

REASONS FOR DECISION

[1]

The appellant appeals the dismissal on a Rule 21
    motion of its claim for negligence against Her Majesty the Queen in Right of
    Ontario (HMQ).

[2]

The appellant, a mortgage broker, was defrauded
    by George Nastevski, who claimed to be the sole owner and officer of Aldrogian
    Holdings Inc. Nastevski persuaded the appellant to advance $1.8 million in
    loans secured by mortgages on property owned by Aldrogian. In fact Nastevski
    had no affiliation with Aldrogian. The appellant claims that, in advancing the
    money it relied on a corporation profile report and other documents it obtained
    from the Ministry of Government and Consumer Services that incorrectly
    identified Nastevski as a director and officer of Aldrogian. In fact Nastevski,
    who had no relationship with Aldrogian, had filed a fraudulent notice of change
    to that effect.

[3]

The claim against HMQ is for the appellants
    loss as a result of advances made pursuant to worthless mortgages taken by the
    [appellant] as a result of [HMQs] negligence. The statement of claim alleges
    essentially that the Ministry owed a duty of care both to the public and in
    particular the appellant, to reasonably ensure the accuracy and reliability of
    the information it collected, maintained and disseminated for a fee, when the
    Ministry knew or ought to have known that the appellant would rely upon such
    information.

[4]

The issue on this appeal is whether the motion
    judge erred in her application of the
Anns/Cooper
test when she concluded that there was no duty of care owed by the
    respondent to the appellant to ensure the accuracy of the information it
    collected and then provided upon the payment of a fee. The appellant says that
    the motion judge erred in law first, in failing to recognize a
prima
    facie
duty of care, and then in her conclusion that the
    recognition of such a duty would be against public policy.

[5]

We reject the appellants arguments. The
    appellants claim against the respondent fails at the first stage of the
Anns/Cooper
test.

[6]

As the motion judge noted, when the defendant is
    a public actor, a relationship of proximity giving rise to a
prima
    facie
duty of care may only arise explicitly or by implication
    from the language of the governing legislation or from the nature of the
    interactions between the parties. See
R. v. Imperial Tobacco
, 2011 SCC 42, at paras. 43-45;
Cooper v. Hobart
, 2001 SCC 79, at para. 43.

[7]

We reject the appellants assertion that because
    the Act does not expressly exclude a private law duty of care, it must exist.
    That is not the law.

[8]

The governing legislation is the
Corporations
    Information Act
, R.S.O. 1990, c. C.39, which requires all
    corporations carrying on business in Ontario to file certain prescribed
    information and changes in information (including a record of officers and
    directors of the corporation). The corporation profile report reflects
    information on the public record for the subject corporation as of the date the
    report is ordered.

[9]

There is nothing in the Act that points to an
    intention to create a private law duty of care on the part of the regulator to
    third parties to ensure the accuracy of information that is filed by or on
    behalf of corporations with the Ministry. Moreover, the language of the statute
    itself is inconsistent with the imposition of such a duty.

[10]

Section 8 requires the Minister to enter into a
    record the information from every return and notice that is received under the
    Act. Section 21 provides specifically that the Minister may accept the
    information contained in any return or notice filed under [the] Act without
    making any inquiry as to its completeness or accuracy. And the Ministers
    certificate contemplated by s. 19 cannot address the accuracy of the
    information in the Ministrys files but is limited to certifying that the
    information set out in that section has or has not been filed.

[11]

The appellant asserts that because HMQ has the
    discretion not to publish the information it receives, once it decides to make
    the information public, it undertakes a duty to ensure its accuracy. There is
    no such discretion. Section 10 provides for a right of public access to the
    information that is filed and maintained by the Ministry upon payment of the
    prescribed fee.

[12]

We agree with the motion judges conclusion that
    reliance by third parties on the information accepted by the Ministry is not
    contemplated by the Act.

[13]

Second, the motion judge did not err in finding
    that the payment of a fee in exchange for access to the public corporate
    record, was insufficient to constitute a direct interaction giving rise to
    proximity. There is no rule that the payment of a fee automatically imposes a
    private law duty of care by a payee to a payor. The appellant has pointed to no
    case authority in support of its submission that the payment of a fee in and of
    itself creates a relationship that gives rise to a
prima facie
duty of care.

[14]

For these reasons we agree with the motion judge
    that it is plain and obvious the claim cannot succeed. Therefore we dismiss the
    appeal. Costs to the respondent in the agreed amount of $2,000, inclusive of
    HST and disbursements.

Doherty
    J.A.

K.
    van Rensburg J.A.

C.W. Hourigan
    J.A.