Major v. MacIsaac Mining Industries Ltd., 2003 CarswellOnt 5599 (Ont. S.C.J.)
George Major worked for MacIsaac Mining for 35 years as a mechanic and then as a master mechanic.
He was terminated when he was 60. He sought damages for wrongful dismissal, seeking 24 months’ wages in lieu of notice, recovery of pension and other benefits lost, and punitive damages. MacIsaac argued it was involved in the construction industry which, according to regulations under Ontario’s Employment Standards Act, isn’t required to give its employees notice of termination or termination pay.
In deciding the matter Justice Dunn of the Ontario Superior Court of Justice ruled that if Major was indeed an employee in the construction industry, then he would not be entitled to notice or pay in lieu of notice. The issue, then, was whether the employer was a construction company and whether Major’s employment was as that of a construction employee.
Justice Dunn noted that while some of the employer’s business involved constructing certain buildings and installing machinery, the company’s ultimate reason for existence was to supply services and equipment to the mining industry. It did not carry on business as a general contractor or construction company and it was involved in installing machinery which dealt with extracting and crushing ore in mines. The company’s very name was that of a mining company, not a construction company, he noted.
As for Major’s specific employment. he was a salaried employee, not paid by the hour. His employment had been fairly constant, and although the company did on occasion give him a notice of termination, they kept him on the payroll.
“It is clear that MacIsaac Mining took great pains to ensure the plaintiff had gainful employment with his company, despite the fluctuations that are inherent in the trade,” said Justice Dunn. This was mutually beneficial, he noted, in that it preserved Major’s “expertise and availability to the defendant… it is clear that both parties treated the employment relationship as one of some permanence.”
As such he ruled Major’s employment had been an exception to the custom of the industry whereby employees were terminated at the end of contracts and notice was seldom if ever given. The justice found Major had sought to mitigate damages, that at his age employment opportunities were “quite limited,” and the industry had been in recession when Major had been terminated. He awarded $93,516 for 16 months’ pay in lieu of notice, and $6,673 for other lost benefits. He rejected a request for punitive damages.
George Major worked for MacIsaac Mining for 35 years as a mechanic and then as a master mechanic.
He was terminated when he was 60. He sought damages for wrongful dismissal, seeking 24 months’ wages in lieu of notice, recovery of pension and other benefits lost, and punitive damages. MacIsaac argued it was involved in the construction industry which, according to regulations under Ontario’s Employment Standards Act, isn’t required to give its employees notice of termination or termination pay.
In deciding the matter Justice Dunn of the Ontario Superior Court of Justice ruled that if Major was indeed an employee in the construction industry, then he would not be entitled to notice or pay in lieu of notice. The issue, then, was whether the employer was a construction company and whether Major’s employment was as that of a construction employee.
Justice Dunn noted that while some of the employer’s business involved constructing certain buildings and installing machinery, the company’s ultimate reason for existence was to supply services and equipment to the mining industry. It did not carry on business as a general contractor or construction company and it was involved in installing machinery which dealt with extracting and crushing ore in mines. The company’s very name was that of a mining company, not a construction company, he noted.
As for Major’s specific employment. he was a salaried employee, not paid by the hour. His employment had been fairly constant, and although the company did on occasion give him a notice of termination, they kept him on the payroll.
“It is clear that MacIsaac Mining took great pains to ensure the plaintiff had gainful employment with his company, despite the fluctuations that are inherent in the trade,” said Justice Dunn. This was mutually beneficial, he noted, in that it preserved Major’s “expertise and availability to the defendant… it is clear that both parties treated the employment relationship as one of some permanence.”
As such he ruled Major’s employment had been an exception to the custom of the industry whereby employees were terminated at the end of contracts and notice was seldom if ever given. The justice found Major had sought to mitigate damages, that at his age employment opportunities were “quite limited,” and the industry had been in recession when Major had been terminated. He awarded $93,516 for 16 months’ pay in lieu of notice, and $6,673 for other lost benefits. He rejected a request for punitive damages.
