The Ontario Court of Appeal in Holland v. Hostopia.Com Inc. (2015 ONCA 762) had this to say about the whether it was relevant in determining the reasonable notice period the fact that the employee got a new position quite soon after the dismissal :
’61.There is, however, merit to the appellant’s submission that the trial judge should not have considered the speed with which he found new employment in determining the period of reasonable notice. Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment: see Panimondo v. Shorewood Packaging Corp. (2009), 73 C.C.E.L. (3d) 99 (Ont. S.C.J.), citing Harper v. Bank of Montreal (1989), 27 C.C.E.L. 54 (Ont. Div. Ct.). If two employees in identical circumstances are terminated at the same time, they are entitled to the same notice, regardless how long it takes each of them to find a new job. One may mitigate her damages by finding a comparable job shortly after being dismissed. The other may be unable to find work for years. They are entitled to the same notice, regardless of the outcome. The time it takes to find a new job goes to mitigation of damages, not to the length of notice.
62 I am unable to find, however, that the trial judge’s consideration of this factor had a significant impact on his conclusion concerning the proper notice period. Having regard to the authorities cited by counsel for the appellant, the appropriate range in this case was between eight and twelve months. While the eight months awarded by the trial judge was at the very low end of the range, I would not interfere with the exercise of his discretion, notwithstanding the error in referring to the time it took the appellant to find new work: See McNevan v. AmeriCredit Corp., at paras. 34-35.
This case is one in a series of cases which is finally clarifying what the rules of reasonable notice are, beyond the Bardal analysis. One can only hope that this trend towards simplification in determining notice periods continues at the appellate level, so that the trial judges, counsel, mediators and the parties can more easily determine what the proper notice should be.
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