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Reasonable Notice Period Awards Exceeding 24 Months in Ontario Wrongful Dismissal Cases. What is your Severance Package Worth?

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In Ontario, the assessment of reasonable notice periods in wrongful dismissal cases has been a subject of discussion for a long time. Historically, the widely recognized maximum notice period was 24 months. Nonetheless, recent court rulings have shown a rise in cases where reasonable notice awards surpass this limit.


As employment law develops, courts are acknowledging that specific extraordinary situations might justify longer notice periods. These situations can involve elements such as an employee's unique skills, lengthy service, high-ranking position, restricted job opportunities, and the influence of external events like the COVID-19 pandemic.


Two Ontario Court of Appeal decisions have shed light on this shifting landscape. In the case of Lynch v. Avaya Canada Corporation, 2023 ONCA 696 (CanLII), a 64-year-old employee with 38.5 years of service was awarded a 30-month notice period. The court considered the employee's unique skill set, their history of patent development, and the limited job prospects in their specific geographic area. These factors were considered exceptional circumstances that justified a longer notice period.


Similarly, in Milwid v. IBM Canada Ltd., 2023 ONCA 702 (CanLII), a 62-year-old manager with 38 years of service received a 27-month notice period. The court recognized that the employee's skills were closely tied to IBM's products, making them non-transferrable, and acknowledged the exceptional circumstances created by the COVID-19 pandemic and its impact on the global economy.


These cases demonstrate a departure from the traditional maximum of 24 months' notice and highlight a growing recognition by courts that some employees may need more time to secure similar employment or transition into retirement. The determination of reasonable notice should be based on the unique circumstances of each case, considering factors such as the employee's age, length of service, position, and market conditions.


These cases highlight the importance of considering exceptional circumstances when determining appropriate notice periods and severance packages for employees. Particularly severance package for long service employees of a senior age in Canada. The unique nature of an employee's role, their contributions to the company, and external factors such as pandemics can significantly impact the length of their notice period. Employment lawyers play a crucial role in advocating for employees' rights, ensuring they receive fair compensation and recognition based on their individual circumstances.


The finding that specialized and/or difficult-to-transfer skills warrant a finding of exceptional circumstances for older and long-service employees has previous support in the case law.


In Currie v. Nylene Canada Inc., 2022 ONCA 209, an award of 26 months was upheld due to the Plaintiff’s specialized and difficult-to-transfer skills:


  • Ms. Currie 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;


  • The work landscape had evolved significantly since Ms. Currie had entered the workforce in 1979 and, as her experience was limited to working for Nylene and its predecessors in one manufacturing environment, her skills were not easily transferable.


In Dussault v. Imperial Oil Limited, 2018 ONSC 1168, affirmed 2019 ONCA 448, 26-month notice periods were awarded to two employees as, among other factors:


  • The employees would have difficulty finding similar employment due to the relatively high compensation they had previously received and their specialization in having worked only for one employer.


The Avaya and Milwid decisions reiterate that specialized and difficult-to-transfer skills could lead to a finding of exceptional circumstances. However, the decision in Avaya also confirms that the Court of Appeal will show deference to the trial judge’s decision to award notice in excess of 24 months for highly specialized individuals. The Court of Appeal explains that:


"Those factors provided the requisite support for the trial judge’s determination that the Plaintiff's circumstances were “exceptional” and justified an award of damages in lieu of reasonable notice based on a notice period in excess of 24 months. Given that the question of reasonable notice is one of mixed fact and law, in the circumstances of this case we do not consider the motion judge’s determination of the notice period as resting on palpable and overriding error. Accordingly, we are not persuaded by this ground of appeal."


It is important for both employers and employees to be aware of these developments in Ontario's employment law landscape and the reasonable notice awards impacting our aging workforce. Employers should review their termination policies and practices to ensure they are in line with current legal standards, and employees should be aware of their rights and seek legal advice if they believe their notice period is not commensurate with their circumstances.


As always, consulting with an experienced employment lawyer like Stitz Litigation is crucial when navigating wrongful dismissal cases and determining reasonable notice periods. They can provide insights into recent legal developments, assess the specific circumstances of the case, and advocate for fair compensation for employees who have been wrongfully dismissed.



More than 24 months severance proves costly for Canadian employers after wrongful dismissal.
Reasonable notice period exceeding 24 month proves costly



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