Currie v Nylene Canada Inc., 2022 ONCA 209 is a new Ontario Court of Appeal decision which upheld the Trial Judge’s 26 month reasonable notice (severance) period award.
I summarized the trial judge’s decision in Currie previously. However, this appeal is worth a summary as well because this is an important case where the severance exceeds the typical maximum severance period of 24 months. This is an Ontario decision, but it would be considered persuasive authority in Alberta, especially because it hails from the Ontario Court of Appeal.
Facts
Below are the pertinent facts highlighted by the Ontario Court of Appeal:
- the plaintiff employee left highschool to start work with the defendant employer and worked there for her entire career, moving all the way up to the position of Chief Operator
- the employee had worked there for a total of 40 years. About 1.5 years prior to termination of employment, she “retired” so that she could start receiving her pension, and was then rehired
- the employee had very specialized skills making it very difficult for her to find alternative employment. She also had limited computer skills
- the work landscape had changed a lot from the time she had entered the workforce 40 years ago, and she had no experience outside of the employer in one manufacturing environment
- given all the factors, including her age, skill set and limited education, the termination of employment was “equivalent to a forced retirement
Analysis / Conclusion
The employer’s first argument was that the employee had retired 1.5 years prior to the termination of employment, so – it argued – the trial judge should have taken into account this “break in service” and not counted the full 40 years. The Ontario Court of Appeal rejected this argument, finding that both parties understood the employee had not intended to stop working but had only “retired” to access the pension.
The Ontario Court of Appeal considered whether the factors considered by the trial judge were sufficient to support a reasonable notice period of 26 months, and found that they were, as follows:
[12] The trial judge firmly anchored his reasonable notice analysis in the factors identified in Bardal v. The Globe and Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.). As well, he acknowledged that the decisions of this court in Lowndes v. Summit Ford Sales Ltd. (2006), 2006 CanLII 14 (ON CA), 206 O.A.C. 55 (C.A.) and Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, 435 D.L.R. (4th) 573 state that exceptional circumstances should exist to support a notice period that exceeds 24 months.
[13] These grounds provide ample support for the trial judge’s award of damages in lieu of reasonable notice.
My Take
I am surprised this case was appealed.
It’s true that 26 months is a very long and exceptional notice period, but on these facts I would have been surprised if the notice period were less than 18 months at trial, and I would have been very surprised if the Ontario Court of Appeal reduced even this 26 month award. It is important to note that the role of the appeal courts is not to overturn discretionary amounts like reasonable notice periods – even if they disagree with them – unless they really are unreasonable.
Reading between the lines, I think the employer was counting on its argument that the employee’s “retirement” should count as a “break in service” to reduce the weight given to her 40 years of service. A break in service can reduce the notice period in the right cases, but on the facts of this case I found this argument to be fairly weak.
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