As calculating the appropriate notice period is fact-specific,
the argument that an employer's financial circumstances should
be considered in the notice calculation is an intriguing one.
Previously, the recognized relevant factors in determining notice
periods focused on the circumstances of the employee rather than
the employer. These include the character of the employment, length
of service, age, experience, training, qualifications, and
availability of similar employment. The motion judge in this case
had considered the employer's financial circumstances to be
part of the "character of the employment".
The ONCA determined that the motion judge had erred and that
previous case history does not support this interpretation. An
employer's poor economic circumstances do not justify a
reduction of an employee's notice period. This decision has
been broadened in the recent decision Nielsen v Sheridan Chevrolet Cadillac
Ltd., 2016 ONSC 1843 which states that even where there is
evidence that the employer's financial difficulties are widely
known and employees were aware of intended workplace closures, the
employer's economic circumstances should not be considered in
calculating the length of notice that an employee is entitled
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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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