In Ontario, there is a presumption that when an employee is dismissed from their employment without cause, they will receive reasonable notice of the termination (or payment in lieu thereof). While not the focus of this article, it is necessary to note that this presumption can, however, be displaced by contractual language clearly specifying an alternate lawful entitlement.
The framework within which the courts determine the length of a notice period was established in the seminal decision of Bardal v. Globe & Mail Ltd., 1960 CanLII 294. In Bardal, the Court explained the process for determining a notice period as follows:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
As such, the Ontario courts conduct an individualized assessment, taking into consideration factors such as the employee’s age, tenure of employment, and the type of role from which they were dismissed (i.e, entry level, skilled, senior managerial, etc.). Generally speaking, and while far from guaranteed, older employees with long service in more senior roles tend to see longer notice periods than those that may comparatively be younger, shorter service and/or occupy more junior roles. The rationale being that these factors can, in some circumstances, make comparable re-employment a more difficult proposition.
Two recent Ontario cases, however, highlight the uncertainty and risk that comes with litigation over reasonable notice periods. They also demonstrate the reality that two seemingly different scenarios can lead to the same result.
Case 1: Ewach v. Whiteoak Ford Lincoln Sales Limited, 2021 ONSC 7206
In Ewach, the plaintiff was 61 years old and worked for 19.5 months as a salesperson earning $60,000 per year. The court determined that, as the plaintiff had presented little evidence to demonstrate why these factors (and particularly the plaintiff’s age) would have hindered his job search, there was no basis to extend the notice period. Accordingly, the plaintiff received 2.5 months’ notice (for reference, he sought 10 months).
Case 2: Lenting v. Huron Tire, 2021 ONSC 8026
In Lenting, the plaintiff was 22 years old and worked for 2 years as a tire technician earning $16.50 an hour. In this case, the plaintiff was likewise awarded a 2.5 month notice period.
Notably, in Lenting, the court stated that “based on the Plaintiff’s age, length of employment, and nature of his duties, reasonable notice would typically be anywhere from 2 to 3 months.”
These two cases involve two seemingly different individuals. The plaintiff in Ewach was 39 years older than his counterpart in Lenting and earned over 60% more per year. Nonetheless, the same court determined that both individuals were entitled to 2.5 months’ reasonable notice. Based on the court’s comments in Lenting that 2-3 months’ notice is appropriate for an individual in a semi-skilled role in his early twenties, however, it begs the question how these decisions can be reconciled.
There are three takeaways from these decisions, which are important to both employees and employers:
- There is an inherent risk involved in bringing a matter to trial. While there are legal frameworks and precedent to guide the court, judges have an inherent discretion to award notice within a ‘reasonable’ range. As such, it is possible for a plaintiff employee to be awarded more (or less) than an employer may expect to pay.
- Marshall evidence to show the court why a plaintiff should (or should not) receive a particular notice period. It is noteworthy that the court in Ewach commented on the lack of evidence to demonstrate why factors such as age and the pandemic had impeded the plaintiff’s efforts to find comparable new employment (and should thus serve to extend the notice period).
- All of the preceding assumes the parties allow the matter to reach a courtroom. There is a significant cost to litigating a case to trial. In certain circumstances, it will be necessary. In other situations, however, it may be worthwhile exploring settlement earlier in the process when weighing potential liability against the costs of a public decision (financial, PR and otherwise).
For example, in Lenting, after two days of hearing (and closing submissions in writing), the court awarded the plaintiff $5,808.00. It is likely, however, the parties spent many times that amount in legal costs.