Being Dismissed in the Summer Could Mean a Longer Notice Period

Compared to the Employment Standards Act, 2000, there is no mathematical formula to determine the reasonable notice period at common law.  For the benefit of those readers who are not employment lawyers, there is an important case called Bardal v. The Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.) which explains how a reasonable notice period is assessed.  At paragraph 21, Chief Justice McRuer wrote:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

In Fraser v. Canerector Inc., 2015 ONSC 2138, a decision of the Ontario Superior Court of Justice, Justice Dunphy commented on this assessment process in the following passage:

The principles to be applied are simple to state if complicated to apply.  As is often said, each case is determined on its particular facts.  The question of reasonable notice is quintessentially a matter of mixed fact and law that requires the judge hearing the case to apply his or her judgment to the assessment of a number of factors many of which tend to pull in opposite directions.  The end result is more art than science but must be one that is fair in all of the circumstances.

Facts of the Case

The matter before the court in this decision was a summary judgment motion in a wrongful dismissal case. An article that I wrote on summary judgment can be found here.

The plaintiff employee in this case, Mr. Fraser, left a senior level position with an auto parts manufacturer to work for the defendant company as a senior executive in acquisitions. Unfortunately, things did not work out for Mr. Fraser and his employment was terminated after 34 months on June 10, 2014. He was 46 years old at the time of his dismissal.

Reasons for the Decision

Justice Dunphy assessed the reasonable notice period to be 4.5 months – not unusual for an employee in an executive position in his mid 40s. However, in reaching this conclusion the judge considered a factor not often taken into account – the season in which the dismissal took place.

At paragraph 25 of his reasons, Justice Dunphy wrote:

I find that for a man of Mr. Fraser’s age and level of responsibility but relatively short years of service, I must also account for the time of year when his employment was terminated in assessing reasonable notice.  Mr. Fraser’s employment was terminated in June and it was quite foreseeable that hiring decisions at his level might have needed to be delayed somewhat due to the summer months in order to account for vacation schedules of key decision-makers.  While his term of service might normally suggest a relatively shorter period of notice, timing plays a bigger role where notice is short.  While timing in fact was no impediment in this case (Mr. Fraser having found new employment by August), that is a conclusion enabled by hindsight. (Emphasis added)

The judge found that in the absence of this factor, he would have assessed a shorter notice period of 3 months instead.

Practical Considerations

The take-away from this case is something that was originally stated in Bardal v. The Globe & Mail Ltd., reiterated by the Court of Appeal in Love v. Acuity Management Inc., 2011 ONCA 130, and echoed in this case. There is no catalogue as to what is reasonable notice in a particular class of cases. No one factor is more important than the others in assessing a reasonable notice period. The end result must be one that is fair in all of the circumstances.

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.