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May 14, 2021
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In Currie v. Nylene Canada Inc., 2021 ONSC 1922 (CanLII), the Ontario Superior Court awarded a twenty six month notice period to the plaintiff following the termination of her employment without cause. The Court held that the worker's long service, educational background, and age created the exceptional circumstances required to award such a lengthy notice period. A twenty-six month notice period means that this employer, Nylene, could not terminate Ms. Currie's employment unless they gave her 26 months of prior notice first.

Before reading on, if you are looking for a general explanation of what notice is and how it is calculated in Ontario, see our prior blog post on the subject here.

Facts

Ms. Currie began working for Nylene, a fiber manufacturing plant, in 1979. In 2018, Ms. Currie and 16 other Nylene employees were terminated without cause. Ms. Currie was paid a total of 32 weeks of post-termination pay (equivalent to roughly 7.5 months of salary).

At the time of her termination, Ms. Currie was 58 years old and had worked for Nylene and its predecessors for a remarkable 39 years.

The position of the parties

Ms. Currie argued that given her exceptional circumstances, a notice period exceeding a 24-month "cap" courts sometimes refer to was warranted.

Nylene argued that Ms. Currie would be entitled to no more than 15 months notice.

The Court’s Decision

The Court was asked to provide a ruling as to how much notice Ms. Currie was owed. Courts have typically instituted a 24-month "cap" in awarding notice periods and have held that this cap should be exceeded only in exceptional circumstances. In reviewing the facts before him, Justice Smith noted several exceptional circumstances in Ms. Currie’s case (at para 84):

  • Ms. Currie left high school to start working at the plant and has faithfully stayed there her entire working life
  • Ms. Currie was 58 years old at the time of her termination and was therefore nearing the end of her career
  • Ms. Currie had developed very specialized skills at the plant that would make finding alternative employment difficult
  • The work landscape had significantly evolved since Ms. Currie began working at the plant in 1979 – it would be difficult for Ms. Currie to apply her skills to a new workplace setting
  • Ms. Currie’s age, limited education and skill set would make it difficulty for her to compete for other jobs against younger candidates with different skills sets

Considering Ms. Currie’s exceptional circumstances, the Court awarded a 26-month reasonable notice period.

Takeaways

A few years ago, the Court of Appeal had stated in strong language that the 24 month "cap" applies except in "exceptional" cases. In this prior decision, Dawe v The Equitable Life Insurance Company of Canada, the employee had a number of features one sees with Ms. Currie, notably, very long notice, yet the Court only awarded 24 months of notice. To some, Dawe signalled the end of any notice periods above the 24-month mark. To others, the Court's affirmation of an "exceptional" test meant that there would be times where a longer notice is ordered: the court simply was not clear as to when.

The Currie case is the first glimpse into what a court might do when exceptional circumstances present themselves, and the results are encouraging. When a company lets some like Ms. Currie go, they are effectively ending that person's career. To award something extra for that is fair and reasonable. Currie is a welcome development.

If you have concerns about your post-termination benefits, please do not hesitate to reach out to our team who would be happy to assist you.

Special thanks to articling student Ocean Avriel for his assistance in drafting this post.

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