Apr 28

Ontario Court Awards 24 Months’ Notice: COVID-19 and Disability Factored In


In a recent wrongful termination case, Sandham v Diamond Estates Wines & Spirits,  the Ontario Superior Court awarded 24 months’ notice to a 64-year-old former National Brands Manager for Diamond Estates Wines & Spirits. The Plaintiff worked for Diamond Estates for over 22 years before being terminated near the end of his career.

Throughout his career at Diamond Estates, the Plaintiff held multiple positions including “Sales Manager”, “National Business Development”, and “Director of Marketing – Wines/New Business Development”. In the position of National Brands Manager, the Plaintiff was not in a supervisory position, nor did he have any staff reporting to him. When Diamond Estates terminated the Plaintiff, they offered him eight weeks’ working notice plus 14 months’ additional salary, for a total of approximately 16 months of salary. Though above minimum entitlements as outlined by the Employment Standards Act, the Plaintiff exercised his right to attain legal representation and negotiate for a longer notice period. 

Twenty-four months notice is near the ceiling of what has been historically awarded at common law. The range of common law notice is usually from 3 months to, exceptional cases like this, more than 24 months. It is understood that when determining a reasonable notice period, it is a fact-specific art. In determining how the Plaintiff reached this ceiling, there were a couple of issues that needed to be decided on by the judge.

 What Is The Reasonable Notice Period?

 When someone is fired without cause as is the case here, the person may be entitled to reasonable notice or severance pay. There may be some limitations to what you are entitled to that are put in place by your employer, these may be outlined in your employment contract. The best way to figure out if there has been a cap placed on what you may receive, you should contact an employment lawyer.

 The Plaintiff took the position that he was entitled to receive 24 months’ notice whilst the Defendant argued that a reasonable notice period was 18 months.

 The judge considered the Bardal factors as defined in Bardal v Globe & Mail Ltd. This case outlined four main factors that are considered when calculating reasonable notice, there are: 

1) Length of Service
2) Availability of similar employment
3) Employee’s age
4) Characteristics of the job.

The Plaintiff’s age of 64 years old is one of the more relevant factors as most individuals at this age are in the late stages of their working life career. Typically, this may mean a longer reasonable notice period. In his 64 years, the Plaintiff dedicated 22 years to Diamond. Such loyalty favours a longer period of reasonable notice.

 When addressing the characteristics of the job, the Plaintiff’s experience was “fairly specialized” to the sale of alcoholic beverages distributed by Diamond. The title that the Plaintiff held at the job is also a relevant factor, though Manager was in his title, the Plaintiff was not involved in supervising other employees. The judge accepted that the Plaintiff had a moderate level of authority.

 The last factor of availability of employment is now being considered differently in light of the COVID-19 pandemic.  

 How COVID Affects Reasonable Notice

 The impact of COVID 19 led to an economic downturn that affects reasonable notice. Because of this, courts had to assess how the pandemic impacted a person’s availability of comparable employment once dismissed. The frequently cited case Yee v Hudson’s Bay, 2021 stated that terminations occurring after COVID started would likely increase the reasonable notice period. As most stores drastically cut their staff and some shutting down completely, many are finding it hard to find employment. This would be the case for the Plaintiff, not to mention his age, which greatly affects how fast he can find comparable employment.

 The judge also considered Iriotakis at paragraph 22, where Dunphy J. stated: 

 [22] I do agree that the plaintiff’s age and the uncertainties in the job market at the time of termination both serve to tilt the period of reasonable notice away from the fairly short period of notice that his short period of service might otherwise indicate. However, these factors do not apply to the exclusion of the others. A balanced approach is what is called for.

 Is A Disability A Factor When Determining Reasonable Notice?

 Another factor that the judge considered was the Plaintiff’s disability. The Plaintiff became visually impaired, and his driver’s licence had been revoked. Though the Plaintiff did not file medical records regarding his impairments, it was not disputed by Diamond that he did have a visual impairment. As driving is a requirement for ease of finding new employment, it was found that his visual impairment would hinder or impair his ability to find comparable employment.

Mitigation: How Long To Start Looking For A Job After Being Wrongfully Terminated?

 Once you have been wrongfully dismissed, the onus is on you to mitigate your damages. This means you must try your best to find comparable employment to lessen the number of wages lost. In this case, the Plaintiff was given eight weeks’ working notice, meaning he was expected to work during the eight weeks. The judge understood that even though the Plaintiff was not actively applying for jobs during that period, it was not indicative of a failure to mitigate.

This is different however if you are given pay in lieu of notice. Usually, this means that you are given a lump sum or salary continuance equivalent to the working notice period. If this is the case, you must make a diligent effort to apply for jobs especially if you are considering commencing a claim against your employer. The best thing to do is to keep a log of all the jobs you have applied for and store any emails where you have corresponded with prospective employers.

What Are My Payment Entitlements?

Your reasonable notice may not be the only thing you’re entitled to. During your employment, you may have received car allowances, bonuses, benefits, RRSP contributions, and cell phone allowances. After being wrongfully terminated, you may still be entitled to these payments as they made up your total compensation package. This was recognized in Ruston v Keddco Mfg.

In this case, the judge found that the Plaintiff was entitled to his car allowance over the reasonable notice period. This was the case even though the Plaintiff’s driver’s licence was revoked. This is because his allowance was continued to cover alternative means of travel such as; public transit, taxis, and ride-sharing.

So How Do I Know What Is A Fair Offer?

If you want to know if you have been fairly compensated after being wrongfully terminated, the Employment Lawyers at Monkhouse Law can assist you with understanding your rights and your options.

Monkhouse Law Employment Lawyers specialize in Employment Law, Human Rights Law, and Disability Insurance. We provide free 30-minute phone consultations and can help in assessing your legal options and what you may be entitled to. 

Call Monkhouse Employment Lawyers at 416-907-9249 or fill out this quick form for a free phone consultation.