Exceptional Circumstances Augment Reasonable Notice, The Lawyer’s Daily (November 11, 2022)

(this article originally appeared in the Lawyer’s Daily on November 11, 2022)

By Nikolay Y. Chsherbinin

Voltaire once said: “Originality is nothing but judicious imitation.” Arguably, and so is the determination of a reasonable notice.

An oft-quoted assertion that determining the period of reasonable notice is an art not a science aside, I note that in 2022 there is a vast catalogue of established factors, ranging from 4 to 150, that aid judges in their task of quantifying the period of reasonable notice. Generally, a reasonable notice must be determined on a case-specific basis and there is no absolute upper limit on what constitutes reasonable notice. The Ontario wrongful dismissal jurisprudence reveals that only exceptional circumstances will support a base notice period in excess of 24 months. An employment case in point is Currie v. Nylene Canada Inc., 2022 ONCA 209, where the Court of Appeal for Ontario affirmed the trial judge’s decision to award a 26-month reasonable notice due to the existence of exceptional circumstances, which this case showcases.

In Currie, an employee, Diane Currie, commenced her employment in 1979 as a temporary twisting operator. She was 18. At some point during her employment, Currie enrolled in the company’s pension plan. On June 9, 1999, she was promoted to relief chief operator. In 2004, Currie was again promoted to chief operator. In 2017, the employer informed Currie that she was eligible for her accumulated pension plan. However, in order for her to receive pension benefits under the plan, Currie was told that she was required to retire, but then, following her retirement, the company would rehire her. Currie complied. On June 20, 2017, she was rehired. On Dec. 12, 2018, Currie was dismissed due to the company’s restructuring. She was 58 years of age, had a grade 11 education and minimal technological skills.

Following her dismissal, Currie launched a wrongful dismissal action. During her trial, Currie testified that she was never advised that once she retired and rehired she would lose 39 years of seniority and would be treated as a new hire with a new hire date. The employer retorted that had Currie not retired there would have been no need to enter into a new employment agreement. Therefore, Currie’s retirement and acceptance of the new offer of employment constituted a break in her employment service.

The trial judge sided with Currie, finding that there was no break in service, because: (a) she did not provide the employer with any written notice of resignation or retirement; (b) her Record of Employment contained no reference to the alleged retirement, yet chronicled important dates from her hiring to her termination; (c) she was not prepared to stop working, but opted to sign the documents prepared by the employer only after it approached her and informed her about her entitlement under the pension plan; and, inter alia, (d) she relied upon the representations made to her that her employment conditions would remain the same, which meant that her status as a long-serving employee and that her tenure would not be affected by her signing a new employment agreement.

Having found that there were exceptional circumstances, the trial judge awarded Currie 26 months’ salary as compensation in lieu of reasonable notice. In support of his finding that there were exceptional circumstances, the judge explained:

(a) Currie’s entire working life has been dedicated to working at the company’s Arnprior plant, and that she has known nothing else;

(b) she was 58 at the time of dismissal;

(c) she was in her twilight working years, closing in on the end of her career;

(d) she has worked and developed skills in a very specialized field (fibre production operation);

(e) since Currie entered the workforce in 1979, the work landscape has evolved and changed significantly;

(f) her experience has been limited to one employer and in one type of environment (specialized manufacturing job), which makes it very difficult to transfer her skills to a new employer;

(g) given Currie’s age, limited education and skills set, the dismissal was equivalent to a forced retirement;

(h) she must compete with people that are much younger than her and that have a different set of skills that may be required such as advanced computer knowledge; and

(i) that she was not well-equipped to effectively compete in today’s market or secure comparable employment.

The employer appealed, but the Appeal Court upheld the trial judge’s judgment, finding that it was open to the trial judge to conclude that the retirement/rehiring process was for the limited purpose of enabling her to access her pension plan and did not affect her years of service with the company for the purpose of determining the reasonable notice period. On the issue of the alleged break in service, the court held that Currie was not prepared to stop working and that she signed the new letter of employment for the sole purpose of accessing her pension plan. The court also affirmed the trial judge’s conclusion that exceptional circumstances existed in this case, warranting an award of 26 months’ notice.

Currie is consistent with the Ontario wrongful dismissal jurisprudence, which recognizes that important and unusual circumstances may support a finding that a long-serving employee is entitled to a reasonable notice period of 26 months.

A survey of relevant jurisprudence reveals a common theme that gives rise to a 26-month notice period, which is: an employee worked for the same employer all her or his professional life. For example, in Hussain v. Suzuki, [2011] O.J. No. 6355, a 65-year-old employee was awarded 26 months’ notice, in part, because he worked for the same employer for 36 years. In Markoulakis v. SNC-Lavalin Inc., 2015 ONSC 1081, a 65-year-old employee was awarded 27 months’ notice, because he worked for the same employer for 40.66 years. In Keenan v. Canaca Kitchens Ltd., 2016 ONCA 79, the Ontario Court of Appeal upheld a 26-month notice period for a 63-year-old employee who worked for the same employer approximately 32 years, even though the trial judge did not make an explicit finding of exceptional circumstances. In Mikelsteins v. Morrison, 2018 ONSC 6952, a 57-year-old employee was awarded 26 months’ notice for working 31 years for the same employer. Similarly, in Dussault v. Imperial Oil Limited, 2018 ONSC 1168, a 63-year-old employee with 39 years of service was also awarded 26-month notice.

While the corollary is evident, one cannot help but to venture a thought: if an employee’s long tenure with the same employer tends to augment his or her notice period, why should the very same fact, which hinders the employee’s mitigation efforts, not be relied upon to reduce his or her notice period (given that a duty to mitigate is important etc.)?

In conclusion, aside from showcasing a plethora of examples of what may constitute “exceptional circumstances,” Currie also serves as a helpful reminder that a trial judge’s determination of the period of reasonable notice is entitled to deference from an appellate court. An appeal court is not justified in interfering unless the figure arrived at by the trial judge is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact.