In Currie v. Nylene Canada Inc., 2021 ONSC 1922, Ontario’s Superior Court held that “exceptional circumstances” existed to justify making an award that exceeded the 24-month “high end” amount of reasonable notice for long-term employees. 

Background

The 58-year-old employee worked for the employer and its predecessors for 39 years, most recently as a supervisor, until her employment was terminated without cause.  The employee was paid eight weeks’ termination pay, 26 weeks’ severance pay, vacation pay, and pension and benefits and the employer’s pension contributions for two months.  The employee was unable to secure alternative employment.  She brought an action claiming, among other things, damages representing 26 months’ common law reasonable notice.

Decision

The court acknowledged that in Dawe, 2019 ONCA 512, the Ontario Court of Appeal (OCA) held that exceptional circumstances are required to support a notice period exceeding 24 months. It then reviewed the “Bardal factors”¹ (i.e., character of the employment, the length of service, the employee’s age, and the availability of similar employment), which must be considered when determining the reasonable notice period.  The court held that the employee was entitled to 26 months’ salary in lieu of notice and concluded that “combining all of the factors set out in Bardal” (para. 85), she demonstrated the existence of exceptional circumstances based on the following factors:

• The employee’s education was limited, i.e., she had not finished high school;
• The employee worked for the employer for 39 years and knew nothing else;
• At her job termination, the employee was 58 years old and “in her twilight working years, closing in on the end of her career”; her termination was “equivalent to a forced retirement”;
• The employee’s skills were “in a very specialized field” and it would be difficult for her to transfer them to another employer; and
• The employee was unlikely to succeed in securing alternative employment, through no fault of her own.

Bottom Line for Employers

The court made the 26-month reasonable notice award in Currie despite the 2019 precedential decision of the OCA in Dawe, which emphasized that the Bardal factors are already “recognized” and “rewarded” by 24 months’ notice, and do not constitute “exceptional circumstances” supporting a notice period in excess of the 24-month “high end” of reasonable notice.  Since the Currie court’s use of the Bardal factors to establish “exceptional circumstances” is inconsistent with Dawe, it will not be surprising if Currie is appealed.  It will be surprising if an appeal is unsuccessful.  In the meantime, Currie should be considered an outlier decision and it should not be relied upon in negotiations relating to an employee’s reasonable notice entitlement.  We will be reporting on developments relating to the Currie decision as they unfold.