Given the elimination of mandatory retirement years ago, employees are working for longer periods of time and well into their 60s and some into their 70s. Age has always been one of the key Bardal factors, in addition to title, length of service and compensation, that courts use to determine an appropriate common law notice period. In the recent case of Ozorio v. Canadian Hearing Society, 2016 ONSC 5440, Justice O’Marra confirmed that an employee’s age remains a significant factor in determining a common law notice period.
In this case, the Plaintiff was the Regional Director of the Defendant’s Toronto Region and she had held this title for 10 years. The Plaintiff was 60 years old and she had more than 30 years of service.The Defendant terminated the Plaintiff and offered her a package of approximately 12 months that was rejected. The Defendant then paid the Plaintiff her statutory entitlements under the Ontario Employment Standards Act, 2000.
On a motion for summary judgement, the Plaintiff argued that she was entitled to 24 months in part because of her age. Justice O’Marra agreed with the Plaintiff’s argument that age was an impediment to her securing alternate employment at para. 17 and 18:
Further, age is an impediment. In Hussain v. Suzuki Canada Ltd.,  O.J. No. 6355, L.B. Roberts J. observed that a plaintiff in his 60s would undoubtedly face “extremely stiff competition with much younger applicants for the same kind of employment”. Such a plaintiff would be significantly disadvantaged because of his age when competing with younger employees. Similarly, in Leeming v. IBM Canada Ltd.,  O.J. No. 1020, Perell J. noted that the plaintiff who was 60 years of age did not have particularly bright prospects for re-employment “competing with younger, more recently trained and less likely expensive talent”.
I accept that the plaintiff is at a competitive disadvantage given her age in the broader job market and having virtually no work experience outside that of the defendant, a not for profit organization.
Justice O’Marra concluded that given the Plaintiff’s age, service of 30 years with the most recent 10 years in the role of a Regional Director, a package of 24 months was reasonable in the circumstances. Significantly, Justice O’Marra held that the Plaintiff would face difficulties in securing comparable employment in the Greater Toronto area labour market as a result of her age:
I accept the plaintiff’s submission that competition for senior managerial roles is very high in the Greater Toronto area and much more difficult for a person the age of the plaintiff, notwithstanding her undoubted competence and experience.
Justice O’Marra then held that there was no dispute over the Plaintiff’s attempts to mitigate and the 24 months was appropriate.
This case confirms that older and long service employees will get the high end of common law damages at 24 months and more in certain circumstances. Employers would be well advised to provide assistance including outplacement services and job vacancies to assist these employees to secure alternate employment in order to avoid such lengthy damage awards.
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