In Elmsdale Landscaping Ltd. v Hiltz, 2023 NSCA 56, a seasonal worker was successful in having a 12 month notice period upheld, despite that it extends past the landscaping season. The NSCA also refused to find that the employee failed to mitigate by refusing to return to work with the employer when recalled 2 months after his constructive dismissal.
This case is interesting to me because the employer had a logically sound argument respecting notice periods for seasonal workers, but it was ultimately not successful.
Facts
The following were the facts summarized by the NSCA:
- The plaintiff James Hiltz was employed by the defendant Elmsdale Landscaping Limited for 17 years prior to dismissal, in a sod operation
- Hiltz would typically work from June to December and then be laid off for the winter and would draw employment insurance benefits
- In June 2020, Mr. Hiltz was suspended from his position working in the sod field for disciplinary reasons when the owner was unhappy with the condition Mr. Hiltz left a sod field in
- The employer offered Mr. Hiltz to work in a lesser position as a sod layer. That was a lower position with less pay which would require him to work in various locations opposed to just one. He questioned the fairness of this initially, but soon said he would do it. He was told it was no longer being offered
- The employer then issued a Record of Employment (ROE) which indicated that Mr. Hiltz had been “laid off” which seemed odd in the busiest part of the season
- The employer contacted Mr. Hiltz again 2 months later to ask him to take the sod layer position. He did not return, but instead took a carpentry job- a different field- with someone else
- He never worked there again, and sued for constructive dismissal some months later
- At trial, the trial judge concluded that the suspension was a constructive dismissal, and he was awarded 12 months’ reasonable notice (severance)
- The employer appealed, arguing that the reasonable notice period should not have extended beyond the normal work season (June to December) and that the employee failed to mitigate his damages by (1) failing to return to work when offered and recalled, and (2) switching careers
Analysis / Conclusion
The employer argued that the reasonable notice period for an employee who works a seasonal job should never extend beyond the current season. The NSCA disagreed, and started its analysis as follows:
[41] […] As noted by the trial judge, in the leading case of Bardal, the Supreme Court of Canada is clear that categorization of notice periods for particular classes of employment is not permissible.
[42] The appellant cites a number of cases on the issue of reasonable notice; however, none establish a general principle applicable to seasonal employees. In each case the court assessed the notice period based upon the individual circumstances of the employment and employee. A review of these decisions will demonstrate the point.
The NSCA went on to summarize several decisions, some of which involved seasonal employees who had no reasonable expectation of being getting re-hired in the following season, and some of which involved seasonal employees that did have a reasonable expectation of rehire. The ones that had a reasonable expectation of rehire were awarded notice periods extending beyond the season.
Ultimately, the NSCA refused to overturn the 12 month reasonable notice period for the seasonal plaintiff.
The employer went on to argue that the plaintiff failed to mitigate his damages by failing to return to work when recalled, and by switching into carpentry, a new industry for him. The NSCA rejected these arguments, accepting that it was not reasonable for the plaintiff to be required to return to work with the employer after the mixed signals and the purported “layoff”, but it was reasonable for him to look for work in a different industry at that point.
My Take
I am not surprised the employer’s argument on failure to mitigate was unsuccessful. I think that decision was consistent with the caselaw, including in Alberta.
The employer’s argument that the reasonable notice for seasonal workers should end at the conclusion of the season is an interesting one. I think the argument has some logical validity, as does the counterargument which was ultimately accepted by the Court and the NSCA.
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