In Slipp v Woodstock First Nation Economic Development Corp ( 2020 NBQB 020) Justice Petrie had to assess the notice period for a 56 year old Bingo Caller making $39,000 with 17 years service.
In deciding age quantum of reasonable notice, the judge said the following
36. Character of employment simpliciter is generally not a relevant factor unless there is evidence establishing otherwise.
• Bramble v. Medis Health & Pharmaceutical Services Inc. 1999 CarswellNB 270 ( NBCA)
• AMEC Americas Limited v. MacWilliams, 2012 NBCA 46
41. I also wish to note that there was no evidence provided by either party as to the job market, nor the economic conditions facing the plaintiff at the time of and following termination. I also have not considered the character of her employment as a factor.
My Comments :
As neither party led evidence on how the character of employment may have affected how long the plaintiff should reasonable take to get a job, the Judge simply ignored it as a factor.
In my experience, I have almost never read a trial decision in which either party has led any evidence on this issue. Instead both counsel and judges do what they have always done, which is simply make the factually unsupported assumption that people who make only a little money will have a easier time getting a job than those making lots of money.
This case can be used by either party. Plaintiff counsel can rely on it to say that their client of modest means should not be penalized in the notice period assessment. Defence counsel can use it to offset the high awards that often go to executives with short service .
By the way, this is already the law in Ontario. Read the case of Di Tomaso v. Crown Metal Packaging Canada LP ( 2011 ONCA 469) in which the Court said :
27 Crown Metal would emphasize the importance of the character of the appellant’s employment to minimize the reasonable notice to which he is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today a factor of declining relative importance: see Bramble v. Medis Health & Pharmaceutical Services Inc. (1999), 175 D.L.R. (4th) 385 (N.B. C.A.) (“Bramble”) and Paulin c. Vibert (2008), 291 D.L.R. (4th) 302 (N.B. C.A.).
28 This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply be taken for granted, particularly in today’s world. In Bramble, Drapeau J.A. put it this way, at para. 64:
The proposition that junior employees have an easier time finding suitable alternate employment is no longer, if it ever was, a matter of common knowledge. Indeed, it is an empirically challenged proposition that cannot be confirmed by resort to sources of indisputable accuracy.
Here’s the rub. Although this principle is the law of Ontario, this case and its guiding principles are either unknown or ignored in the overwhelming bulk of cases that go to Court.
Why is this ?