December 6 2018

Ontario’s Court of Appeal affirms there’s a qualitative component to reasonable notice of termination

In Wood v. CTS of Canada Co., 2018 ONCA 758, the Ontario Court of Appeal (“ONCA”) upheld the Superior Court of Justice’s finding of a “qualitative” component to reasonable notice of termination.

The closure of a Streetsville manufacturing plant had resulted in a mass termination for the purposes of section 41 of the Employment Standards Act, 2000 (“ESA”). The former employees sued regarding reasonable notice of the termination of their employment and Ontario Superior Court of Justice since, during the period of notice before their employment ended, the Employer was making them work above the maximum overtime hours permitted under the ESA.

The Ontario Superior Court determined that the employer failed to provide “reasonable” working notice and that the employer could not credit to its notice period any week where an employee worked over the ESA maximums. The Court found it cannot count as notice where an employee does not have a reasonable amount of time to look for work.

The Employer appealed but the Ontario Court of Appeal dismissed the appeal, holding that the motion judge did not err by invalidating parts of the working notice period. The Court of Appeal found that “quality of opportunity” is a relevant consideration during a notice period and it was not present because of the forced overtime that prevented the employees’ ability to find alternative work.

According to the Wood decision, an employer must provide employees a meaningful opportunity to seek other work during the notice period. Otherwise, the qualitative component is not met, and the court may invalidate some or all of the notice period. In such a case, employers are unable to credit that portion to the period of notice and employees will be entitled to pay in lieu of notice.

Post by  Lindsay McLellan, student-at-law

Image: No Boss I didn’t see a thing! by Neil Moralee via Flickr under Creative Commons licence

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