General Rules

The fundamental guidelines for determining an award of “reasonable notice” or wrongful dismissal damage awards have been in place for many years. There is not a fixed set of factors as there exists many unexpected nuances, but the basics may be fairly stated to be:

1. The character of the employment;
2. The length of service;
3. The age of the employee on termination;
4. The availability of similar employment, given regard to the training and qualifications of the person terminated.

This being said, this summary is not much help in determining the real awards. The real life awards by judges will form the basis of comparison for what to expect a court may award.

History – A Moving Target

At one time many years ago, a high side award was considered to be six months.  In what was then considered to be a dramatic departure from this idea, an Ontario court in 1960 awarded 12 months.[1]

This number has been gradually moving upwards over the years since 1960. In 2006, the Ontario Court unofficially set the expected high side number as 24 months. It did leave the door slightly ajar, noting the possibility of “exceptional circumstances”.[2]

There have been far too many cases awarding sums in excess of 24 months since that date to make the reasoning based on unusual facts.[3]

Thirty Months or More?

A recent Ontario decision not only awarded 30 months[4], but the court also mused that perhaps the correct award should have been set at 36 months. The plaintiff had not asked for such an amount.

In this case, the plaintiff was a 62 year old Senior Vice President with 37 years of service on termination, certainly dramatic, but not unheard-of facts. The court accepted the evidence that he had intended to work until age 65 and also that there was no similar employment available.

Given that Ontario law has no upper limit on retirement age, the prospect of an even more substantial award lingers on the horizon.

Clearly the proposition that there is some fixed ceiling on a notice award is not viable.

What is an Employer to do?

This decision places considerable emphasis on a company’s need to put in place effective employment contracts which can limit termination claims to a reasonable sum. This may be easy to do with new hires and persons being promoted but absent such circumstances this can be a difficult task.

Indeed a practice by an employer to focus on older long term workers only for new contracts or termination could even lead to human rights complaints.

Employees Take Note

These decisions can certainly provide solace to older long term workers facing termination. It is important to know that possible award before accepting a severance award.

Get Advice and Know Your Rights

Whether you be employer or employee, this issue of the dynamic extent of notice periods is important to understand. In the employers’ context, companies may at the very least take preparatory defensive manoeuvres, if done with precision and prudence. This is an  issue which requires solid legal advice. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] Bardal v Globe and Mail

[2] Lowndes v Summit Sales

[3] Dussault v Imperial Oil in which two employees were awarded 26 months; Keenan v Canac Ontario Court of Appeal in which an award of 26 months was upheld; Markoulatis v SNC in which 27 months was allowed; Hussain v. Suzuki Canada Ltd. (unreported)

[4] Dawe v Equitable