Case In Point

Appellate Court Confirms 26 Month Reasonable Notice Period in Case with Exceptional Circumstances

Case In Point

Appellate Court Confirms 26 Month Reasonable Notice Period in Case with Exceptional Circumstances

Date: March 14, 2022

On March 14, 2022, in Currie v. Nylene Canada Inc., the Ontario Court of Appeal upheld the decision of a trial judge to award a 26-month reasonable notice period to an employee following her without cause dismissal by the employer.

The employer had appealed the trial judge decision to the Ontario Court of Appeal on two grounds: (i) the quantum of the awarded notice period, and (ii) the fact the trial judge used 1979 to 2018 as the employee’s period of service (rather than from 2017 forward, the date the employee signed a new employment agreement).

On the first issue, the Court of Appeal agreed that the facts initially put before the trial judge provided ample support for his finding that exceptional circumstances existed to warrant a 26 month reasonable notice period, being:

  1. The employee had dropped out of high school and had worked for the employer ever since.
  2. The employee was 58 years old at the time of her dismissal from employment, and had been in “the twilight stages of her career.”
  3. The employee worked in a highly specialized field which rendered re-employment difficult.
  4. The employee’s experience was limited to one employer and one environment, and the broader work landscape had changed significantly since she had entered the workforce 39 years prior.
  5. The employee’s limited education, skills and her advanced age were akin to a “forced retirement” as she would have to compete against much younger applicants and was ill-equipped to do so.

On issue of the appropriate period of service, the employer argued on appeal that the employee had “retired” in June 2017 which “constituted a break in service of her employment such that her immediate re-hiring through the June Employment Letter re-set her years of service clock back to zero.”

The trial judge had found that the employee had signed the new letter of employment for the sole reason of accessing her pension and was assured that her terms of employment would remain the same – she had never provided a notice of resignation or retirement.

Once again, the Court of Appeal accepted the reasoning and conclusion of the trial judge, citing multiple points of the employee’s testimony which supported this conclusion, as well as the following two points:

  1. The employment record chronicled important dates from the employee’s hiring to her termination, but there was nothing on the alleged retirement, and
  2. The employee did not provide the employer with any written notice of resignation or retirement.

The Court of Appeal dismissed the employer’s appeal in its entirety.

The Takeaway

Employers should take note of this decision which provides an example of what Ontario courts may consider to be “exceptional circumstances” justifying a deviation from the general principle that a common law notice period will not exceed 24 months.

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