What is exceptional? How to get more than 24 months notice of termination…
August 8, 2022
The Ontario Court of Appeal in the 2019 decision of Dawe v. the Equitable Life Insurance Company of Canada held that only exceptional circumstances would support the award of a notice period in excess of 24 months in relation to the termination of someone’s employment.
Recently they had occasion to review that decision. At trial 26 months notice was awarded. The employer appealed.
The Court of Appeal refused to find that the trial judge had committed an error in law. Specifically, the Court of Appeal held that the following factors provided “ample” support for such an award:
(i) The employee left high school to start work (at age 18) as a twisting operator at the company and worked there for her entire career, ultimately rising to become the Chief Operator reporting to the Shift Leader;
(ii) After working at the company for 40 years, her employment was terminated by the company near the end of her career, when she was 58 years old;
(iii) The employee had very specialized skills making it very difficult for her to find alternative suitable employment. Moreover, at the time of her termination, her computer skills were limited. She made diligent efforts to attempt to gain basic computer skills and mitigate her damages but the trial judge was not convinced she would succeed in securing alternative employment;
(iv) The work landscape had evolved significantly since the employee had entered the workforce in 1979 and, as her experience was limited to working for the company and its predecessors in one manufacturing environment, her skills were not easily transferable; and
(v) Given employee’s age, limited education and skills set, the termination “was equivalent to a forced retirement.
Is this the everyday situation; clearly not. However, the case is useful in the goal posts it sets and illustrating exception is not “impossible”.
Currie v. Nylene Canada Inc.,2022 ONCA 209 (CanLll)