Lynch v. Avaya Canada Corporation, 2023 ONCA 696 (CanLII).
Can Courts award larger notice periods than what was originally requested in the pleadings? The Ontario Court of Appeal's recent decision of Lynch v. Avaya Canada Corporation, 2023 ONCA 696 (CanLII) ("Lynch") seems to indicate so.
The general rule in Ontario is that parties are limited to recovering the relief that they have actually requested in their pleadings. This requirement ensures that other parties are aware of the case to be met and can tailor their responses accordingly. If parties wish to later change any aspect of their pleadings, they must amend them via a formal process which requires obtaining the consent of all others involved or the leave of the Court. Once that is done, they are then required to re-serve their amended claim.
In Lynch, an engineer name John Lynch was terminated after 29 years of service with successor companies. Mr. Lynch sued his former employer for wrongful termination and only requested 26 months' notice in his statement of claim. The Plaintiff moved for summary judgement on the basis of that request. However, once at the motion and without having amended the pleadings, the Plaintiff's counsel sought 36 months' notice for his client instead of the 26 originally pleaded. In her decision, the judge awarded Mr. Lynch 30 months of notice, or four months above what was actually requested in the pleadings.
The Ontario Court of Appeal upheld this increase from what was originally requested, stating that the employer conceded they suffered no litigation prejudice from the motion proceeding based on an increased amount and that they also recognized that, had the plaintiff sought to amend his claim, the motion judge would probably have allowed it.
 In his Statement of Claim, Mr. Lynch claimed damages for wrongful dismissal representing 26 months' notice; the motion judge awarded 30 months' reasonable notice. Avaya submits the motion judge erred by awarding Mr. Lynch a notice period that exceeded the relief sought in the Statement of Claim.
 We see no merit in this argument. As Avaya acknowledges in its factum, at the hearing of the summary judgment motion Mr. Lynch sought an award of damages based on 36 months' notice. The motion was argued on that basis. Avaya conceded at the hearing of the appeal that it suffered no litigation prejudice by the motion proceeding on that basis. As well, Avaya acknowledged that had Mr. Lynch sought an amendment of his claim before the motion judge, she probably would have granted one. Accordingly, we give no effect to this ground of appeal.
Although one would expect damages to be capped at what parties actually requested in their pleadings, the Court's leniency and its uphold on appeal opens the door for employment lawyers to request increased damages once they find themselves in Court. From this decision, it appears that counsel who can prove that no prejudice is caused by requesting increased notice, as well as that an amendment of pleadings would likely have been granted had one been requested, could potentially be successful in obtaining a higher notice period once at trial.
This decision is also interesting in that Mr. Lynch was awarded 30 months of notice while the Ontario Court of Appeal in Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA) has previously held that notice periods exceeding 24 months generally require exceptional circumstances.
 Although it is true that reasonable notice of employment termination must be determined on a case-specific basis and there is no absolute upper limit or 'cap' on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months: see Baranowski v. Binks Manufacturing Co.,  O.J. No. 49 (S.C.J.) at para. 277 and Rienzo v. Washington Mills Electro Minerals Corp.,  O.J. No. 5126 (C.A.).
However, many of the factors enumerated by the trial judge in Lynch as warranting a larger notice period, and that were upheld by the Court of Appeal, appear far from exceptional. For example and although similar employment was available nearby in Toronto or Ottawa, the trial judge considered a lack of comparable employment in Belleville as an exceptional circumstance. Mr. Lynch's expertise and skills being limited to internal and unique software, and the fact that he developed one or two patents yearly for his previous employer were also found to warrant a notice period above the presumptive ceiling. It is arguable that most if not all of these factors would apply to any employee who spent over three decades at the same employer, thereby significantly lowering the bar for long-term or small labour market employees to obtain notice periods in excess of 24 months.
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