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

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:

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]

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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).