Court Increases Notice Period From 9 to 10 Months Due to COVID:

In Kraft v Firepower Financial ( 2021 ONSC 4962 ) Justice Morgan awarded 10 months notice to a 34 year salesperson in the financial industry with 5.5 years service.

However he did this is in a three step process.

First of all he determined that the relevant case law showed a range between 4 and 12 months.

Secondly, he then determined that the average of those cases was 9 months .

Thirdly he added a month because ” there was evidence that the pandemic impacted on the Plaintiff’s ability to secure new employment.”

In this case the termination took place in mid March 2020, the same week the Ontario government declared the pandemic emergency . Here is more of what the Judge said :

[18] Here, by contrast, the Plaintiff was terminated during the second week of March 2020, the very same week and just days before the Ontario government declared an emergency. Whatever policy considerations drove the provincial government to implement its emergency orders on one particular day that week and not another are not relevant to the analysis; the point is that the economy was already shutting down and remained closed during the Plaintiff’s inevitably prolonged job search. A global pandemic does not just emerge on the day of the government’s emergency decree. 

[19] Especially during the first half-year of the shutdown in response to the pandemic, there was uncertainty in the economy and the job market and fewer employers were looking to fill positions. I agree with cases that warn against the danger of applying hindsight to the reasonable notice analysis: Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, at para 19. But as a number of my colleagues have commented, “[t]his degree of uncertainty, which existed on February 19, 2020, is one of the many factors that I consider in assessing the reasonable period of notice applicable to the circumstances of this case”: Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 2133, at para 64. 

I find that the manner in which the Judge approached the notice issue interesting because he actually set out a logical process as opposed to musing about the Bardal Factors and then seemingly plucking a number out of the air.
I wonder whether in determining  the average of the cases he had before him a objective determination of the most relevant cases. ( yes this is a shameless plug for my Wrongful Dismissal Database ) .
He then clearly told us by how much he was increasing the notice period because of COVID .
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