September 14, 2015
The Ontario Superior Court of Justice, in a decision rendered by Pollak J. released April 16, 2015, has recognized that a 65 year old employee with over 40 years’ service with his employer was “uniquely situated”; a relevant consideration in deciding the length of notice upon termination of employment.
The employee had been employed as a Senior Civil Engineer for over forty years when he was terminated due to a shortage of work. The employee requested a notice period of 30 months; the employer took the position that 36 weeks was appropriate. The court agreed that only exceptional cases warrant an award of damages in lieu of notice in excess of 24 months. It wrote “the fact that the Plaintiff is over 65, has more than 40 years of service with the Defendant, his only employer, is in my view, exceptional”. The Court awarded a notice period of 27 months.
The Court then went on to consider the issue of how to deal with the fact that the judgment was being rendered only 8 months post-termination. It declined to find that the Plaintiff would not mitigate and order judgment without qualification. Instead it held that the employer had an obligation to continue to pay to the employee for the balance of the notice period, subject to the employee’s obligation to mitigate his damages and to reduce the monthly payments for any earnings by the employee during the notice period. If the employer wished to challenge the employee’s mitigation efforts or earnings made during the notice period, the matter may be brought back before the court. The Judge indicated that she would remain seized of the matter should that be necessary.