Determining the actual notice period an employee is entitled to
upon termination is often a frustrating exercise for employers.
This is especially true of the more recent case-law which has
tended to place more emphasis on certain factors (age and tenure)
at the expense of other factors (nature of position and
compensation). There have been widely divergent awards in recent
years. This undermines the ability of employers to plan, with some
certainty, for large scale restructurings and the required
notice/severance to provide staff.
The recent Ontario Court of Appeal decision of Kotecha v.
Affinia Canada Ltd,2014 ONCA 411 ("Affinia")
is both a blessing and curse for employers. First, the good
news. The Court of Appeal has put the brakes on escalating
awards for lower skilled and older employees. The employee was a 70
year old machine operator who had worked for the employer for
twenty years. He was originally awarded 24.5 months'
notice on a motion for summary judgment. On appeal, the Court
of Appeal concluded 18 months was appropriate. In making this
reduction, the Court of Appeal has supported the general notion
that notice periods in excess of 24 months will only be awarded in
exceptional circumstances – according to the Court of Appeal,
this was not such a case.
Now, the bad news. Affinia had argued that the Court of
Appeal should defer to a previous court case that Affinia was
involved in where an employee was awarded 13 months' notice.
The Court of Appeal disagreed and affirmed that each case is
decided on its own specific facts:
While other decisions of the Superior Court are persuasive, they
are not binding as the appellant seems to suggest. Moreover,
the determination of the appropriate notice period is a very
fact-specific exercise and is calculated in accordance with
numerous factors as set out in Bardal v. Globe and Mail
Ltd.,  O.J. No. 149, being the character of employment,
the length of service, the age of the employee and the availability
of other similar employment.
Consistency in the application of the law is key for
employers. Knowing that similarly situated employees have
similar entitlements allows proper planning and budgeting. For
Affinia, that meant that it could not even rely on a previous case
involving the same employer and a similarly situated employee.
Determining notice periods at common-law remains an
individualized assessment. There are no "rules of
thumb" and formulaic approaches are not supportable in the
case-law. Employers are well advised to seek legal advice in
determining notice periods to reduce risk. In addition,
employers should be hesitant to rely on precedents – whether
that be internal policy or judicial decisions involving the
company. Again, the Court of Appeal has confirmed that, while
frustrating for employers to hear, each case is decided on its own
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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