Facts
Decision
Comment


On 14 March 2022, the Ontario Court of Appeal upheld the trial court's decision in Currie v Nylene Canada Inc to award a 26-month reasonable notice period. The Court of Appeal reaffirmed the trial judge's finding that there were exceptional circumstances that rendered the employee's termination "equivalent to a forced retirement". This justified exceeding the 24-month notice period, which is commonly viewed as a maximum ceiling on reasonable notice.

Facts

The plaintiff in this wrongful dismissal litigation was an employee who began her employment with the defendant company in 1979.

In December 2018, Nylene Canada Inc decided to discontinue its fiber production operation, and the employee was terminated on a without cause basis as a result, after nearly 40 years' service. The employee, who was 58 years old, was provided eight weeks of termination pay and 26 weeks of severance pay.

The employee sued her employer for wrongful dismissal, and, at trial, the court awarded her 26 months' reasonable notice.

Decision

At the Court of Appeal, Nylene submitted that the trial judge erred by exceeding the maximum reasonable notice period of 24 months, as there were no exceptional circumstances that would justify a longer period.

The Court of Appeal denied the appeal and upheld the decision of the trial judge, recognising that this case presented exceptional circumstances justifying a notice period in excess of 24 months.

The exceptional circumstances in support of a notice period of 26 months included:

  • age when commencing work – the employee left high school at age 18 to work with the employer and she remained there for her entire career;
  • career progression – the employee began work as an operator and progressed to the position of chief operator;
  • age at termination and length of service – the employee was terminated at age 58, near the end of her career and after almost 40 years of service;
  • specialised skills – the employee worked in the niche field of fiber production operation where she had gained specialised expertise. She also had limited computer skills which the trial judge noted would make it difficult for her to secure alternate employment;
  • lack of transferable skills – as the skills the employee had learned were highly specialised, it would be difficult to transfer these skills to another employer; and
  • entire career with a single employer – the employment landscape had substantially changed since the employee began working in 1979. She remained in one environment her entire career, employed by Nylene and its predecessors, which would add to her difficulty finding suitable alternative employment.

Considering the above factors, the Court of Appeal reaffirmed the trial judge's conclusion that the employee's termination was "equivalent to a forced retirement", which justified a reasonable notice period of 26 months.

Comment

This case provides context into what exceptional circumstances are with respect to the Ontario courts' determination of a reasonable notice period. While the length of reasonable notice is still generally capped at 24 months, employers should be mindful of situations where exceptional circumstances exist, and employees may be entitled to a notice period in excess of this cap.

For further information on this topic please contact Lisa Cabel or Qasid Iqbal at KPMG Law by telephone (+1 416 777 8000‚Äč) or email ([email protected] or [email protected]). The KPMG Law website can be accessed at www.kpmg.com.