As we reported in our July 2019 and August 2020 newsletters, the Ontario Court of Appeal in Dawe v. Equitable Life Insurance Company, 2019 ONCA 512 reiterated that 24 months is the longest reasonable notice period that can be awarded absent exceptional circumstances. However, since then there continues to be decisions finding longer reasonable notice periods.
Currie v. Nylene Canada Inc., 2021 ONSC 1922 (“Currie”), is the latest decision from the Ontario Superior Court of Justice to find exceptional circumstances existed to justify a reasonable notice period beyond 24 months.
Ms. Currie was 58 at the time of her termination and had been employed with Nylene Canada Inc. (“Nylene”), or its predecessors, for 39 years. She held the position of Chief Operator – Spinning/SDT/Zeftex. Ms. Currie commenced a claim against Nylene seeking, amongst other damages, a reasonable notice period of 26 months.
In determining the reasonable notice period, the Court considered the Bardal factors. While Dawe was considered, caselaw presented by Ms. Currie which predated Dawe was also considered due to the similarities with Ms. Currie’s case. It was found that Ms. Currie’s “unique situation” justified a finding of exceptional circumstances. In particular, Ms. Currie had worked with at same plant from the time she was 18 and until her termination and had planned to stay with Nylene until her retirement. She devoted her entire working life to Nylene and its predecessors. Ms. Currie did not have a high school diploma but had worked her way up to a supervisor position. She was in her “twilight working years” at the age of 58. She had specialized skills and the time of the trial, she had been unable to secure alternate employment, despite her mitigation efforts. She had only worked in one environment for 39 years, making her skills not easily transferrable and she had limited education and skill set. The Court found that her termination was essentially a forced retirement.
In terms of her mitigation efforts, Ms. Currie had applied to 143 job postings. She had received one offer of employment for a part-time, fixed term contract at a reduced salary. It was found that this position did not constitute a similar and/or suitable alternative employment. Nylene had asked for a reduction in the notice period due to Ms. Currie’s failure to apply for positions in May, June. September and November 2020. While COVID-19 was not specifically considered in determining the reasonable notice period, the Court noted that as result of the pandemic it has been “an extraordinarily different and difficult year for many, including employers” which had resulted in fewer available job opportunities. Ms. Currie’s efforts to mitigate were found to be more than reasonable.
Ms. Currie was awarded a reasonable notice period of 26 months.
Takeaway
Despite the decision in Dawe, courts are still willing to find exceptional circumstances and reasonable notice periods beyond 24 months. In Currie, the Plaintiff’s long service with the same employer for her entire working career, her age of 58, and her limited education and lack of transferable skills were strongly considered in finding exceptional circumstances.