THE EMPLOYERS' EDGE
26 Month Wrongful Dismissal Notice Period Upheld by Ontario Court of Appeal
Understanding and appreciating the extent of an employer’s liability when it is required to terminate a worker’s employment can be a challenge. Case law has seemingly established an upper limit of twenty-four (24) months’ notice for long-service, non-union employees where entitlement is not other restricted by an enforceable employment agreement. However, the courts have left open the possibility of awarding more significant notice periods when “exceptional circumstances” exist.
The Court of Appeal in Currie v. Nylene Canada Inc., 2022 ONCA 209 recently upheld a decision from the Ontario Superior Court which explored the “exceptional circumstances” that can be the basis for an award north of 24 months in such cases. Employees may see this case as a precedent that Courts will be lenient in awarding more significant reasonable notice damages, however, employers need not fear that this case represents a change to the case law which generally establishes 24 months as the upper limit of reasonable notice.
The Decision
On March 16, 2021 the Ontario Superior Court of Justice issued a decision awarding the plaintiff, a former employee of Nylene Canada Inc., 26 months of pay in lieu of notice. The judge identified the following factors when determining that “exceptional circumstances” exist to warrant a notice period above 24 months:
- the plaintiff left high school to start work at age 18 as a twisting operator at Nylene and worked there for her entire career, ultimately rising to become the Chief Operator reporting to the Shift Leader;
- after working at Nylene for 40 years, her employment was terminated by Nylene near the end of her career, when she was 58 years old;
- the plaintiff had highly specialized skills making it very difficult for her to find alternative suitable employment. Moreover, at the time of her termination, her computer skills were limited. She made diligent efforts to attempt to gain basic computer skills and mitigate her damages but the trial judge was not convinced she would succeed in securing alternative employment;
- the work landscape had evolved significantly since the plaintiff had entered the workforce in 1979 and, as her experience was limited to working for Nylene and its predecessors in one manufacturing environment, her skills were not easily transferable; and,
- given the plaintiff’s age, limited education and skills set, the termination “was equivalent to a forced retirement.”
Takeaways
The circumstances of this case were exceptional in that the plaintiff’s long service with Nylene essentially rendered her unemployable in the current job market that often requires more than basic computer skills. Given the plaintiff’s lack of varied experience it would be highly unlikely for her to secure similar alternative employment.
The exceptional circumstances of this case are not probable to repeat themselves in all cases involving long-service employees. Employers should be aware, however, that where long-service employees are dismissed they may attempt to lean on this case, and others like it, to lengthen the claimed notice period. Employers should also be aware of the “exceptional circumstances” that can inhibit an employee’s ability to secure alternative employment-one of the deciding factors in assessing common law reasonable notice.
If you are an employer and require legal advice on wrongful dismissal, contact one of our team members at CCPartners to discuss ways in which you may be able to limit your exposure to risk.
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