Written by Michael J Weiler
Each year we report on how the courts have defined “reasonable notice” in the previous year. For those employers who have binding written employment agreements that define the notice period on termination – congratulations! Those agreements should be determinative, and therefore these decisions are not relevant. But for the vast majority of employers who do not have such written agreements in place with their employees, the following summary will be very much relevant and should be of interest.
Courts will look at four key elements to determine how much notice is reasonable: age, length of service, position and the availability of similar employment having regard to the employee’s skills and qualifications. The court will often look at economic circumstances but will not give that factor undue weight. The highest period of notice, subject to a few exceptions, is 24 months. As noted below Ontario courts seem to be ready to break through that ceiling. Please bear in mind the fact that each case will be decided on its own facts and there is no litmus test. Furthermore, the amount of notice will not always equal the amount of damages as the employee must mitigate her damages and must also prove her losses (e.g. lost benefits or bonuses).
The following notable cases from 2018 will give you some idea of the courts’ present thinking on the matter. There can be very important factors in each case especially dealing with senior executives whose compensation can often exceed $20,000 per month. If you want to become a lawyer for a day, cover up the right-hand column and see how you do in assessing the notice periods:
|Case Name||Employee Position||Income||Age||Period of Employment||Notice Period|
|Pakozdi v B & B||bidder/estimator||$125,000||55||13 months||5 months|
|Firth v IBM||not senior management but called him a “fiduciary”!||$112,000||38||19 yrs||19 months|
|Dussault/Pugliese v Imperial Oil||D–Manager Real Estate-not supervise but NB position||$190,00||63||39 yrs||26 months|
|“Dussault” cont.||P–Territory Mgr–not supervise but NB position||$156,000||57||36 yrs||26 months|
|Kerr v Arpac||Manager (no employees)||$70,000||70||22 yrs||20 months|
|Pasche v MDE Enterprizes||Sheet metal estimator||$66,000||67||18 yrs||13 months|
|Tymko v 4-D Enterprizes||Switchman / operator||52||3 yrs||2 months|
|Greenlees v Starline Windows||salesman||$100,000||43||6 months||6 months|
|Kok v Adera Natural Stone Ltd.||s’or=senior management||$131,000||54||27 years||22 months|
|Corey v Kruger Products||maintenance s’or–first level of management||$100,000||58||2 1/2 yrs||8 months|
|Ruston v Keddco Mfg||President||$278,000 + bonus||54||11 years||19 months|
|Chapple v Big Bay Landing Ltd||Lodge Manager||$85,000||61||26 months||9 months|
|Dawe v The Equitable Life Insurance Co||Senior Vice President||$249,000 salary + $379,000 bonus||62||37 years||30 months|
Michael Weiler practices employment and labour law including human rights and prevention of workplace harassment/bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca . Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law. Michael can be contacted at firstname.lastname@example.org . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at email@example.com or call her at 604 336 7427.
DisclaimerThe content in the Michael Weiler Employment + Labour newsletters is for your general information and should not be taken as legal advice. If you have a specific problem, please contact Michael Weiler to discuss your situation.