Wednesday, July 20, 2011

Ontario Employment Law: Determining The Appropriate Period Of Reasonable Notice

In Harvey v. Shoeless Joe's Limited, a May 26, 2011 summary judgment ruling of Stinson J. of the Ontario Superior Court of Justice, the Court deals with the two of the questions that are central in every wrongful dismissal action:
  1. Is the Plaintiff entitled to reasonable notice of termination at common law?
  2. If so, what length of notice period is the Plaintiff entitled to receive ?
In quickly disposing of the first question, Stinson J. pointed out the Defendant's written offer of employment to the Plaintiff contained no provision with respect to notice of termination and that there was no evidence of discussion between the Plaintiff and the Defendant that could be taken to limit or otherwise vary the "implied contractual right to reasonable notice of termination."

With respect to the second question, the appropriate period of notice, Stinson J. turned to the oft-cited Bardal factors.

Length of employment

The Plaintiff was a short-term employee with only 5.5 months of service which strained towards a lower period of notice. That said, Stinson J. decidedly rejected the employer's argument that awarding a short term employee of less than 6 months of service more than a month's salary would open the floodgates to claims by short-term employees:
The defendant argues that granting a notice period in excess of one month would “open the floodgates” to claims by short term employees. I do not accept that submission. Firstly, the Bardal factors have stood the test of time for half a century, and have been repeatedly applied and accepted by trial and appellate courts in determining appropriate notice periods in a wide range of cases. Where trial judges have been too lenient or too strict, appellate courts have stepped in to correct errors in the application of the principles. Secondly, as the defendant unsuccessfully attempted in the present case, it remains open to an employer to protect itself by requiring the prospective employee to agree to a contractual termination arrangement that would take their relationship out of the common law notice scheme.
Character of employment

The Plaintiff held the position of Vice President Operations at a salary of $130,000.00, which involved many supervisory duties. This factor supported a higher period of notice.


The Plaintiff's age, 41, was a neutral factor.

The availability of similar employment

Given that it took the Plaintiff 10 long months to find new work, this factor spoke for itself and favoured a higher period of reasonable notice.

In light of these four factors, Stinson J. concluded that the Plaintiff was entitled to 2.5 months of pay in lieu of notice.

If you believe you have been wrongfully dismissed, please contact a lawyer who can advise as to your rights under the Ontario Employment Standards Act and at common law.

- Robert Tanha, Toronto
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