March 29 2017

Long term employees are entitled to longer notice periods

Backlit person wearing a toque sits at a table typing on a laptop, mug beside them

Employees in Ontario are entitled notice of the termination or pay in lieu if they are terminated without cause. The notice period may be set out in a contract, but employees can be entitled to longer common law notice periods if they do not have a valid contract.

Judges primarily apply the factors set out in Bardal v Globe & Mail Ltd, 1960 CanLII 294 (ON SC) to determine the length of notice required:

  • character of employment;
  • length of service;
  • age of the employee; and,
  • availability of other similar employment.

A judge’s analysis is flexible and fact-driven. Nevertheless, length of service continues to be a strong indicator of the proper notice period.[1]

As the population ages, older employees with many years of service might have to deal with the consequences of termination. Ontario courts have repeatedly held that older employees who have worked with the same employer for many years are entitled to longer notice periods.

In Ozorio v Canadian Hearing Society, 2016 ONSC 5440 (CanLII), Ms. Ozorio was 60 years old and had 30 years of service when she was terminated. Her position was Toronto Regional Director, which involved managing 65 staff, overseeing an $8 million budget, and reporting directly to the CEO. She tried to mitigate her damages by searching for a new job, but could not get a similar senior position.

The Court decided that 24 months of pay in lieu of notice was appropriate. The Court noted that while there is an informal cap of 24 months of notice, “there have been numerous cases in which older and long term employees in non-executive positions such as the plaintiff have been found to be entitled to 24 months’ pay in lieu of notice”.[2] Longer notice periods are justified for older employees with longer terms of service because of the competitive disadvantage they face in finding new employment when competing with a younger and less costly talent-pool.[3]

If you need advice on whether to accept a severance package, please contact us today at (613) 594-5100.

Article: Joshua Nutt (Articling Student)
Image: Liam Matthews via Flickr under Creative Commons Licence

=========================================================================

[1] KW Thornicroft, “The Assessment of Reasonable Notice by Canadian Appellate Courts from 2000 to 2011” (2013) 17 Canadian Labour and Employment Law Journal 1, at 29.

[2] See for example: Bolibruck v Niagara Health System, 2015 ONSC 1595 (CanLII); Brien v Niagara Motors Ltd, 2009 ONCA 887 (CanLII); Lowndes v Summit Ford Sales Ltd, 2006 CanLII 14 (ONCA); Kerr v Canada Alloy Castings, [2000] OJ No 5169; Cowper v Atomic Energy of Canada Ltd, 1999 CanLII 14853 (ON SC), affirmed 2000 CanLII 2995 (ONCA)

[3] See Drysdale v Panasonic Canada Inc, 2015 ONSC 6878 (CanLII), citing Mckinney v University of Guelph, [1990] 3 SCR 229, 1990 CanLII 60 (SCC), and also Paquette v TeraGo Networks Inc, 2015 ONSC 4189 (CanLII).

Related News

CPP benefits battle gets results for injured worker

One our clients unfortunately suffered severe injuries to both of his hands and could no longer work. He was denied access to Canada Pension Plan Disability Benefits, but Randy Slepchik at Jewitt ...

Close up of rusty locked black gate bars with distant light seen through a tunnel
Ontario Court Finds Insurance Company Must Pay Plaintiff’s Legal Costs on Full Indemnity Scale

An Ontario Court recently released the Hoang v Personal Insurance Co. decision on legal costs against insurance companies that have wrongfully denied a claim. The Court noted that it is typical ...

Landmark HRTO Ruling

In L.N. v Ray Daniel Salon & Spa, 2024 HRTO 179 (CanLII), the Tribunal dealt with an application alleging discrimination in employment based on sex, sexual harassment, sexual solicitations or ...