Canada: Focus On Gaps In Employment / Continuity Of Service

One of the key factors in determining the reasonable notice period on termination of employment is the length of the employee's service. Generally speaking, the longer the employee has worked for the same employer, the more notice the employee is entitled to receive (up to a limit).

Occasionally, the situation arises where there have been gaps in employment. An employee may have interruptions in his or her service for a variety of reasons, such as a leave of absence due to family responsibilities, a lay-off, or even a voluntary resignation to obtain alternative employment followed by a return to the original employer. These gaps in continuity can create uncertainties in determining the proper length of service for purposes of the reasonable notice period.

Whether a court will ignore the gap and treat the employment periods as cumulative, or will disregard the prior employment period and only count the most recent period, depends on a variety of factors. The factors are not always applied consistently, but some trends can be identified within the case law.

The following factors are the best predictors of how the court will treat gaps in employment:

  • The length of the gap in relation to the overall employment.   The less significant the gap in the overall scheme of employment, the easier it is to ignore the gap and treat the employment periods as cumulative.
  • The reason for the gap.   The gap is more likely to be ignored where the leave is for family reasons or other matters beyond the employee's control, rather than due to a voluntary resignation to seek alternative employment.
  • The means of reintegration into the workplace.   The gap is more likely to be ignored where the employee returns with recognition of his or her prior seniority, rather than being treated as a new employee. Similarly, the gap is more likely to be ignored if the employer lures the employee back to employment. This factor reflects an attempt to objectively determine the parties' intentions.

A few examples will assist to illustrate these points.

In Gibara v. ABN-Amro Bank (2003), 29 C.C.E.L. (3d) 80 (Ont. Sup. Ct.), the court declined to recognize the prior employment period. Although the interruption in service was not long (four months within 13 years), the employee had left voluntarily because he decided to join a competitor. There was no inducement for the employee to return, there was no agreement that the employee would retain seniority, and the employee returned to a differently constituted program. The judge held (at para. 10):

In my view the authorities establish that where an employee has quit and later returns, the earlier period will not be considered in determining reasonable notice unless there is agreement to that effect or circumstances such as inducement to leave a secure position.

A contrasting set of facts is found in Brien v. Niagara Motors Ltd. (2009), 78 C.C.E.L. (3d) 10 (Ont. C.A.). In this case the court ignored a two-year gap in employment for a 23-year employee who had left to have her second child. The court specifically noted that the leave was "for family reasons and not for another job". The court also noted that the gap was "only two years". Further, the employee was invited back and was reintegrated as though she had never left, e.g., she retained her earned vacation entitlement.

A very recent British Columbia case illustrates both sides of the issue. In Graham v. Galaxie Signs Ltd., [2010] C.L.L.C. 210-029 (B.C.S.C.), the employee began working in 1983, and was constructively dismissed in 2007. In that time, there were two gaps in service: a six-month leave in 1990, and a two-year leave from 2002-2004. The court treated these two gaps very differently. The first was an unapproved leave of absence during which the employee worked for a different employer in a different industry. Upon his return he was treated as a new employee. Thus, the court declined to recognize the first period of service from 1983 to 1990. The second gap was different because the employee had bargained on return for recognition of his past service and ultimately retained his seniority. The court therefore considered the cumulative service from 1990 to 2002 and from 2004 to 2007.

Other cases in which the court declined to recognize a prior period of employment include: where the employee decided to leave, there was no inducement to return and the employee was hired as a new employee, including a probation period (Leonard v. Kohler Canada Co. (c.o.b. Canac Kitchens) (2009), [2010] C.L.L.C. 210-007 (Ont. Sup. Ct.)); where the employee resigned to a join a competitor, was not lured back and was treated as a new employee on rehire based on a clear company policy (Matheson v. Canadian Freightways Ltd. (2003), 30 C.C.E.L. (3d) 159 (B.C.S.C.)); where the employee left of his own volition to work for another employer and the gap was eight years (Coppin v. MPR Teltech Ltd. (1997), 30 C.C.E.L. (2d) 293 (B.C.S.C.)); where the prior periods were intermittent and the employee quit each time and reapplied (Trudeau-Linley v. Plummer Memorial Public Hospital (1993), 1 C.C.E.L. (2d) 114 (Ont. Gen. Div.)); and where the employee was previously terminated with a severance package (Stant v. Elaho Logging Ltd., [2006] C.L.L.C. 210-023 (B.C.S.C.); Schwindt v. Jann & Neil Sulkers Ltd., [2007] C.L.L.C. 210-024 (Sask. Q.B.)).

Other cases in which the court considered the cumulative effect of all periods of service include: where the employee had resigned to raise her family, continued to work part-time during the leave, and was asked by her employer to return to full-time status (Cronk v. Canadian General Insurance Co. (1995), 25 O.R. (3d) 505 (C.A.)); where the employee was rehired at the same position, with an increase in salary and resumption of earned vacation (Jezic v. Thomson Newspapers Co. (1994), 5 C.C.E.L. (2d) 113 (Ont. Gen. Div.); Gordon v. Saint John Shipbuilding & Dry Dock Co. Ltd., [1983] N.B.J. No. 187, 47 N.B.R. (2d) 150 (Q.B.)), where the employee had jointly structured his return to work to take into account prior service as evidenced by e-mails (Potter v. Halliburton Group Canada Inc. (2004), 36 C.C.E.L. (3d) 255 (B.C.S.C.)); where the break lasted only a few days and the employee was hired into a more senior position (Immaculate Confection Ltd. v. Claudepierre (1991), 38 C.C.E.L. 119 (B.C.S.C.)); and where both the employer and employee ignored the effect of the hiatus after a few years (Chorny v. Freightliner of Canada Ltd. (1995), 9 C.C.E.L. (2d) 11 (B.C.S.C.); Beach v. Ikon Office Solutions Inc. (1999), 45 C.C.E.L. (2d) 12 (B.C.S.C.)).

Finally, it is important to note that the issue is less murky when it comes to statutory termination payments. There is express recognition in the Ontario Employment Standards Act, 2000, S.O. 2000, c. 41 that time spent on "leave or other inactive employment" is to be included when determining the period of employment for purposes of statutory termination pay, but this does not apply to a lay-off (s. 59). In addition, all of the time spent "in the employer's employ, whether or not continuous and whether or not active" is to be included when determining eligibility and calculating entitlement to severance pay under the statute (s. 65(2)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.