In a 2021 Ontario court decision, an employee was awarded 26 months reasonable notice, with the court finding that exceptional circumstances had been demonstrated.
In that case, the court referred to a 2019 Ontario Court of Appeal decision which established that, absent exceptional circumstances, notice is normally restricted to a maximum of 24 months.
In the 2021 case, the court justified an award of 26 months for several reasons, including the fact that the employee had been terminated without cause after 40 years of service with the employer. In fact, she had begun her employment at the age of 18, leaving high school to take the job, and had intended to work there until her retirement. Additionally, despite her skills, the employee had been terminated from the only job she had known, at the age of 58, and lacked basic computer skills. The court noted that she had attempted to find alternate work and update her computer skills following her termination in 2018, but had been unsuccessful in doing so.
The court concluded stating:
“Given [the employee]’s age, limited education and skills set, the termination was equivalent to a forced retirement. She must compete with people that are much younger than her and that have a different set of skills that may be required such as advanced computer knowledge. She is not well equipped to effectively compete in today’s market or secure comparable employment.
Considering [the employee]’s unique situation and combining all of the factors set out in Bardal, I conclude that [the employee] has demonstrated the existence of exceptional circumstances.
As a result, I find that she is entitled to 26 months’ salary as compensation in lieu of notice.
As at the completion of the trial, no amounts had been earned by [the employee] during the notice period. Based upon the evidence, it is highly unlikely that she would earn any income by the time that this decision is released. Accordingly, I am not prepared to reduce the notice period.”
It should be noted here that the court’s reference to Bardalis a reference to the four factors set out in the case Bardal v Globe & Mail for the determination of reasonable notice, which look at the employee’s:
- length of service,
- character of employment,
- availability of similar employment
Notice “Rough Upper Limit” in Alberta is 24 Months
While the above decisions came out of Ontario, a 2018 Alberta Court of Appeal decision also affirmed that the general “rough upper limit” for reasonable notice in Alberta is 24 months.
In that case, the trial judge had awarded the employee 24 months notice. The employee appealed, arguing that he should have been awarded 28 months.
The court held that, absent exceptional circumstances, the rough upper limit was 24 months, stating:
“Another aspect of this part of the [employee]’s argument about duration is that the case was somehow exceptional, and that even if 24 months of notice was the “rough upper limit”, the [employee], in his specific circumstances, deserved more notice.
The trial judge’s fact findings to the contrary are, in our view, supportable. It is to be again remembered that reasonable notice and the context in which the duty to give it arises quintessentially from questions of fact…. It is also useful to recall… that the general rule… is that “damages allocated in such actions are confined to the loss suffered as a result of the employer’s failure to give proper notice and that no damages are available to the employee for the actual loss of his or her job and/or pain and distress that may have been suffered as a consequence of being terminated”….
We are also not persuaded that the [employee] has shown palpable and overriding error in the trial judge’s approach to finding 24 months to be a reasonable notice period in light of the Bardal factors as adapted in later cases. This amount was already at the “rough upper limit” for such a notice period. Indeed, it was longer than the period needed by the [employee] as he secured other employment before that time period ran out even after doing nothing to look for work during the first period of time.
The [employee] also contended that there were “exceptional circumstances” to justify an increase beyond 24 months. The trial judge, in our view, considered all relevant circumstances. He was not persuaded to exceed the “rough upper limit”. This ground of appeal fails.”
As a result, the court dismissed the employee’s appeal, upholding the award of 24 months reasonable notice. An application for leave to appeal to the Supreme Court of Canada was dismissed.
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