In Lynch v. Avaya Canada Corporation, 2023 ONCA 696, the Court held that exceptional circumstances involving a 64 year old Professional Engineer with 38.5 years service entitled him to a 30 month notice period.
Even though the trial judge did not set out these exceptional circumstances, the Court of Appeal did so themselves, as can be seen in the following extract:
 Although the motion judge in the present case did not craft her reasons in that fashion, it is possible to discern the “exceptional circumstances” factors she relied on by comparing her listed factors with those this court in Currie held justified an award in excess of 24 months. Those factors were: (i) Mr. Lynch specialised in the design of software to control unique hardware manufactured by Avaya at its Belleville facility; (ii) it was uncontested that Mr. Lynch’s job was unique and specialized, and that his skills were tailored to and limited by his very specific workplace experience at Avaya; (iii) during his lengthy employment of 38.5 years, Mr. Lynch developed one or two patents each year for his employer; (iv) Avaya identified Mr. Lynch as a “key performer” in one of his last performance reviews; and (v) although similar and comparable employment would be available in cities such as Ottawa or Toronto, such jobs would be scarce in Belleville where Mr. Lynch – who was approaching his 64th birthday – had lived throughout his employment.
How could it possibly be relevant to determining the notice period that:
a) Mr. Lynch developed one or two patents each year for his employer;
b) Avaya identified Mr. Lynch as a “key performer” in one of his last performance reviews.
So, if he did not develop any patents, would his notice period would be less?
So, if he was not a key performer, would his notice period would be less?
Since when is how good an employee is at their job been a factor in determining notice? Logically a lousy employee should have a harder time getting a job than a key performer.
In my respected opinion, this case sets the law of reasonable notice back to being a crap shoot rather than a somewhat predictable outcome that lawyers can have confidence in when advising clients.
First of all, any concept of a notice cap seems to be out the window.
Second, by looking at a never ending list of factors and considering previously irrelevant factors, this simply makes the determination of reasonable notice more uncertain. This will cause confusion and uncertainty among both dismissed employees and their former employers, which in turn will lead to more litigation.
As a mediator, that’s good news for me.
As a keen observer of employment terminations for over 40 years, it stinks.
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