Mar 28

Ontario Court of Appeal Affirms Decision to Award 26 Months’ Notice to Wrongfully Dismissed Employee


In Currie v Nylene Canada Inc., 2022 ONCA 209, the Ontario Court of Appeal affirmed the lower court’s decision to award a wrongfully dismissed employee with twenty-six months’ notice of termination.

The employee left high school at the age of 18 and immediately started working for the employer in 1979. She continued to work for the employer for  40 years until December 2018, when she was terminated on a without cause basis. As of her termination, she was 58 years old and held a senior managerial position with the company. 

The Lower Court’s Decision

At trial, the employer argued that the employee had retired in 2017, to access her pension, and subsequently accepted a new offer of employment. The employer asserted that the employee’s retirement constituted a break in service and that as a result, her entitlement to notice ought to be significantly reduced. 

In support of this position, the employer relied upon a statement by its pension administrator, that to receive her pension, the employee needed to retire, and receive an updated Record of Employment (ROE). The employee subsequently received a package from the company that would enable her to access her pensions, which also included an updated offer of employment. The 2017 offer indicates that the company will recognize her prior years of service, exclusively, for the purposes of determining her eligibility under the company’s benefits plans. 

The employee denied that she resigned her employment and relied upon the company’s assurances that all the terms of her employment would remain the same including her rate of pay, benefits, and seniority. Moreover, she asserts that she never intended to give up her right to reasonable notice at common law. 

No Break in Service

The trial judge concluded that there was no break in service. The court denied that she had voluntarily resigned from her employment. The judge concluded that she had signed the documents prepared by the employer for the sole purpose of accessing her pension and under assurances from the company that the material the terms of her employment would remain unchanged.

Lastly, the trial judge concluded that the employee did not knowingly give up her service or common law entitlements. The trial judge found that it was incumbent upon the employer to clearly point out any changes to her employment status. 

Exceptional Circumstances Warrant an Award of 26 Months’ Notice

Typically, a court will not exceed an award of 24 months’ notice unless there are exceptional circumstances. The trial judge concluded that this case was a rare exception to the rule and warranted a higher award based on the following factors: 

1) The employee never graduated from high school; she began working for the company after completing grade 11;

2) She was 58 years old and in the twilight of her working career;

3) The employee worked in a very specialized field and had rudimentary computer skills. Despite her diligent efforts, the court was not convinced that she would be able to secure alternative employment in a modern workforce;

4) The employee had spent 40 years with a singular employer, and it would be very difficult to transfer her skills and experience to a new employer; and

5) Given her limited education and skill set, the termination was equivalent to a forced retirement.

The ONCA’s Decision

The employer raised two arguments on appeal: (1) that the trial judge erred in considering the employee’s entire history of employment when assessing her entitlement to reasonable notice; and (2) that there were no exceptional circumstances that warranted granting an award that exceeded the 24-month cap on reasonable notice.  

First, the Court of Appeal (“ONCA”) determined that the trial judge correctly articulated their reasoning for finding that there had been no break in service. Specifically, the employee never provided written notice of her resignation, and she never intended to stop working. Instead, she agreed to sign the documents based on assurances by the company that her status as a long-standing employee would not be impacted. 

Second, the ONCA found that the trial judge’s decision that there were exceptional circumstances, that warranted a greater award, was firmly rooted in both the material facts of the case and the court’s prior and established case law.

Take Away for Employees

This decision affirms the court’s prior statements that exceptional circumstances are required for an employee to be entitled to an award of greater than 24 months’ notice. Whilst also clarifying the boundaries of what constitutes exceptional circumstances. 

It is important to point out that an employee’s lengthy period of service, alone, is typically not sufficient to exceed the 24-month cap. The traditional analysis to determining an employee’s entitlement to notice, already incorporates an employee’s age, years of service, seniority, and the availability of comparable work. Accordingly, in most cases, employees will need to point to something more. In the present case, the court relied upon the employee’s rudimentary computer skills and inability to function within a modern workforce.

Moving forward, it is likely that the courts will continue to closely guard against any award that is greater than 24 months. 

If you are a worker who has recently been terminated and you have questions about your rights or entitlement to notice of termination, please contact Monkhouse Law Employment Lawyers. Monkhouse Law is an employment law firm located in Toronto with a focus on workers’ issues. Give us a call at 416-907-9249 or fill out this quick form. We offer a free 30-minute phone consultation.

About the Author: This article was written by Daniel Hunter an Employment Lawyer at Monkhouse Law