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Kilpatrick award reversed on procedural grounds

In a decision released on May 5, 1999, an award of 30 months of notice to a hospital executive with six years of service, reported in the July 1998 issue of FOCUS (see "Hospital CEO with six years' service awarded 30 months' notice" on our Publications page), has been overturned by the Ontario Court of Appeal. In Kilpatrick v. Peterborough Civic Hospital, a motions judge had held that, by recruiting Kilpatrick from his previous employer of 29 years, the Hospital had implicitly led him to believe that his new job would last until he reached retirement age. On the basis of this unstated inducement, the motions judge held that Kilpatrick's relatively short tenure should not be used to lessen the notice period, and that he should be in no worse position than if he had been discharged from his previous employment.

The Court of Appeal did not rest its decision to set aside this judgment on any disagreement with the outcome. Rather, the Court was concerned about how the result had been achieved. In the lower court, the parties had requested a motion for summary judgment, on the basis that the employer had conceded that there was no cause for dismissal and the only issue to be decided was the length of the notice period. However, the Appeal Court ruled, determination of an appropriate notice period involves findings of fact based on the circumstances of each case. This requires a trial, and is beyond the function of a motions judge. As a result, the Court directed that a trial be held on the issue of the proper notice period. (See also "Terminating employees: a tough job, but someone's got to do it" and "Long-serving employee on serial short-term contracts wins record notice and punitive damages" on our Publications page.)

For further information, please contact George Rontiris at (613) 563-7660, Extension 275.