In Ho v Monk Office Supply, ( 2026 BCSC 1324 ) Justice Morley  made these comments of how to determine the reasonable notice period for employees with very short employment, which was defined  as employees with less than 1.5 years employment.

[31]      Subsequent case law, consistent with the result in Saafeld, demonstrates that when the Court of Appeal said two to three months is “typical” for a short-term employee (less than 18 months), this should be interpreted as a “starting point”, which should only be departed from if there is a compelling reason, which will typically be an unusually lengthy job search, but may also be unusual commitments by the employer or unusual detrimental reliance by the employee in taking the job, whether characterized as leaving secure employment, inducement by the employer, or uprooting the employee’s community: Greenlees v. Starline Windows Ltd., 2018 BCSC 1457[Greenlees]; Younesi v. Kaz Minerals Projects B.V., 2021 BCSC 614 at para. 37 [Younesi].

The Court goes on to review a number of very short employment cases where the awards allow in excess of 2 to 3 months notice and the rationale behind that decision.

In this case Mr Ho was a 41 year old Corporate Controller with 2.5 months service. He was awarded 4 months notice. The reason for awarding him more than the starting point was as follows:

My Comments:

In my mediation practice , I see many employees with service of less than 18 months.

Predicting notice periods for short service employees has been been much more difficult than  for longer service employees .

I believe that this case could be very useful in resolving notice periods for very short service cases. It at least gives us a logical process:

1. We start with a notice period of between 2 and 3 months.
2. Then we look at whether there are any ” compelling factors” which should extent that notice period.

This is similar to how some courts have viewed  cases calling for a a notice period in excess of 24 months notice, where the onus shifts to the plaintiff to show what “extraordinary factors” should allow for a notice period in excess of 24 months.

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In  Silva v. Royal Bank of Canada, 2026 ONSC 3841 Justice Casullo had a situation where a 47 year old financial planner with 12 years service was terminated for allegations of just cause in relation to her obligations as a financial planner .

The Mutual Funds Dealers Association, of which the Defendant was a member, has certain reporting requirement;

1. Pursuant to MFDA Policy No. 6, Information Reporting Requirements, Part B, 6.1, Members [RMFI was a Member] shall report to the MFDA: 

(b) whenever a Member is aware, through a written or verbal complaint or otherwise, that the Member or any current or former Approved Person [Ms. Silva was an Approved Person] has or may have contravened any law or regulatory requirement, relating to: 

(i) theft, fraud, misappropriation, forgery, money laundering, market manipulation, insider trading, misrepresentation, or unauthorized trading; 

(ii) a breach of client confidentiality; 

(iii) engaging in securities related to business outside of the Member; 

(iv) engaging in an undeclared outside activity; or 

(v) personal financial dealings with a client. 

Upon her termination the Defendant the required report was filed.

They also filed another required from called a NOT which is described by the Judge as follows:

1. The NOT is a regulatory filing made with the OSC when a registered individual leaves a sponsoring firm. As noted at the beginning of these reasons, The NOT is filed with the National Registration Database using Form 33-109F1, and is notice to all interested parties that the individual is no longer authorized to act on behalf of the sponsoring firm. 
2. One of the NOT’s purposes is to provide regulatory oversight, ensuring that if an individual leaves amid allegations of misconduct, future employers can conduct appropriate due diligence during the hiring process. 
3. The NOT, completed by Ms. Papaevangelou, provided that Ms. Silva was dismissed for cause, and reported that she had been investigated for possible material violations of fiduciary duties, regulatory requirements or compliance procedures. Further, Ms. Silva had repeatedly or materially failed to follow compliance policies or procedures. The “Details” section sets out the following: 

The investigation determined that, contrary to RBC policies, the individual forwarded confidential client and RBC information to her personal email account and processed authorized transactions for clients prior to obtaining their signatures. 

The OSC conducted their investigation:

1. On October 30, 2018, four months later, the MFDA released the results of its review. The MFDA found Ms. Silva to be in breach of MFDA Rule No. 2.1.1(b) Standard of Conduct; MFDA Rule 5.1(b), Requirement for Records; and MFDA Rule No’s 2.5.1 and 1.1.2, Compliance by an Approved Person. 
2. The MFDA labeled the breaches as “minor in nature”. The MFDA took no action beyond a cautionary letter designed to prevent similar breaches in the future. Possible sanctions included a warning letter or formal disciplinary proceedings.

The Judge found that the Defendant failed to prove just cause and awarded 16 months notice

.However the Judge went on to award significant additional damages under the category of ” Loss of  Earning Capacity”

1. It has been accepted that damages for loss of earning capacity can be appropriate in a wrongful dismissal claim. The Court of Appeal in Boucher v. Wal-Mart Canada Corp, 2014 ONCA 419, 120 O.R. (3d) 481, at para. 103, commented that “a claim for future loss of income can arise in an employment context where a plaintiff has not recovered from the effects of the wrongdoer’s action and the plaintiff has thus suffered a loss of any earning capacity because of the wrongdoer’s tortious conduct.” This speaks to the principle of putting the plaintiff in the position she would have occupied had she not been wrongfully dismissed. 
2. The Court of Appeal declined to award Ms. Boucher with loss of opportunity damages. Ms. Boucher did not have an employment contract that guaranteed her employment to age 65. Instead, the Court of Appeal found she was entitled to be put in the position she would have been in if the contract had been performed: employment subject to dismissal in accordance with the terms of her contract. 
3. I find this case to be distinguishable from Boucher. While Ms. Silva was not guaranteed employment to age 65, her inability to find comparable employment was directly linked to the filing of the NOT by RBC. This wrongdoing has thus left Ms. Silva unable to work in the financial planning industry. 
4. In Ojanen v. Acumen Law Corporation, 2021 BCCA 189, the British Columbia Court of Appeal awarded $100,000 in loss of opportunity damages to Ms. Acumen, an articling student whose legal career was delayed by her wrongful dismissal. Ms. Ojanen’s employment was terminated for cause after the employer made unfounded allegations of plagiarism and disclosure of confidential information. Ms. Ojanen sought damages for the loss of income that she suffered as a result of not being able to become a lawyer at the end of her articling term. The trial judge found that Ms. Ojanen had no reasonable prospect for employment in the legal profession in Canada while the allegations brought by the Appellants were being pursued against her. 
5. In my view, Ms. Silva’s case is similar to Ojanen. Ms. Silva had no reasonable prospect for employment in the financial planning profession while the allegations brought by the NOT were filed. 
6. Ms. Silva testified that she had no intention of retiring before age 65 owing to her late arrival in Canada and desire to accrue CPP. This position was not shaken during cross-examination. 
7. Ms. Silva is currently 55 years of age. She has expressed a desire to return to the financial services industry as a financial planner. I am satisfied she will do so. 
8. Assuming she resumes her career given the dictates of my judgment, a damages award to age 60 would afford Ms. Silva five years to secure a position in the field, re-build her client base, and re-establish her clients’ trust. Five years is not unrealistic – both Ms. Silva and Mr. Agardi confirmed it took Ms. Silva eight years to build her first book of business. 
9. I am satisfied Ms. Silva has established on a balance of probabilities that she is entitled to an award for loss of earning capacity.
10. Ms. McKeating has quantified Ms. Silva’s future income and benefits losses at $1,919,272 if Ms. Silva were to retire at 60. This figure includes adjustment for negative contingencies, including disability and mortality. 
11. I award Ms. Silva $1,919,272, to which shall be added pre-judgment interest. 

The judge also said this about the Notice of Termination filed with the OSC:

Notice of Termination 

1. While I found that the wording contained in the NOT was not defamatory, in light of my reasons, it is now incorrect. RBC did not have cause to dismiss Ms. Silva. 
2. I order that RMFI file with the MFDA (now IIROC) a notice of correction of the NOT. If the parties cannot agree on the form of correction, I will remain seized of the issue to ensure that the final correction accurately reflects the outcome of the case 

My Comments:

The damage claim for Loss of Future earning capacity is a concept well known in the personal injury field. Under tort law, you are entitled to be put in the same position as if the tort  had not occurred . In other words, if you suffered a permenant  loss of an arm and your prior employment was that of a carpenter, then you would calculate how much more money you could earn in the future had you not lost that arm

But contract law is different. In contract, you are to put in the same position had the contract been complied with. In this case, had the Defendant not alleged just cause, they would owe her 16 months pay in lieu. Period.

The Judge seems to have awarded these extra damages because of the filing by the employer of the NOT . The employer is required by law to file such a notice . The OSC investigated and four months later they virtually cleared her. 

Therefore how can the employer be on the hook for filing a report that they are compelled by law to report. The OSC conducted the investigation and cleared her.

Yes there well have been a lingering stigma affecting her future career because of the Defendant’s position of just cause but how is that different from any employee who is fired for cause and then has to wait years for a Court to clear their name?

In this case, her name was cleared in 4 months. Therefore the stigma of the charges no longer exists.

The Judge also found that the Plaintiff was entitled to $150,000 for aggravated damages and $250,000 for punitive damages

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In Wilsher v Olympic Wholesale ( 2026 ONSC 3620) Justice Woodley awarded  19 months notice to a 55 year old Night Shift Supervisor with 17 years service.

Nothing special.

The Plaintiff was fired as he admitted for the many years as he had been a supervisor, he and all the night supervisors, had engaged in the practice  of “topping up” ” time cards. If an employee worked through his  or her lunch or break or is they completed their assigned work before the end of the shift, the supervisor would go into the time recording system and adjust the system to show they worked to the end of their shift, whcn in fact they had not.

The Judge found that this was not just cause for the following reasons;

1. This had been a long standing and consistent  practice among the entire night workforce.
2. The plaintiff did not personally benefit from this practice.
3. The Union contract guaranteed 40 hours a week for the peeople he was supervising.

However the Judge found that there were many factors about the investigation that warranted additional damages.

[129]      In the present case, there is sufficient evidence that Olympic engaged in bad faith and unfair dealings when dismissing Willsher that would justify awarding an extended notice period to Willsher. This evidence, includes inter alia, the following:

1.    The “investigation” specifically targeted Willsher without any attempt to determine the nature and extent of the “topping up” practice.
2.    No other supervisors were interviewed about the “topping up” practice, nor were other supervisors’ edits of employees’ timesheets audited in the course of the “investigation” as, according to Peroff,[4] Olympic “was not required to prove the plaintiff’s case”.
3.    Willsher’s October 5, 2023 “interview”, conducted by Peroff and Sousa, closely resembled an interrogation and not an investigation or interview. The meeting was implemented without notice, without explanation, without due process, without representation and was conducted in a high-handed, one-sided and biased manner, intended to intimidate Willsher.
4.    Willsher’s replacement, Jacob Bailey, who assumed Willsher’s position as Night Shift Supervisor in October 2023, was terminated in December 2025 (immediately prior to trial) “for the same practice”[5] which supports a finding that Willsher’s termination was personal, directed, and intended to remove Willsher from the company, not to correct or prevent the “topping up” practice from continuing.
5.    The termination letter provided to Willsher on October 5, 2023, accused him of “fraudulent behaviour” and “theft of time”. Willsher’s ROE recorded “dismissal/suspension” and prevented him from obtain unemployment benefits. Further, Willsher was not provided with any references after 17 years of employment with Olympic and, as such, he was inhibited in his search for new employment and mitigating his losses.

[130]      Despite attempts to secure new employment, Willsher has been unable to find a new job and has suffered embarrassment and humiliation at the hands of Olympic. In these circumstances, Willsher is entitled to damages in the form of an extended notice period extended to the date of release of this decision which equates to a further 14 months’ notice, for a total notice period of 33 months.

My Comments :

Most judges punish bad behaviour by employers by awarding either punitive or aggravated damages. However this Judge ruled that :

“the actions of Olympic in terminating the employment of Willsher do not rise to a level that would warrant punitive damages.”

The Judge made the same comment about aggravated damages.

Instead the Judge awarded an 14 month extension  of the notice period, which given his salary of $62,000, amounted to an award of approximately $72,000.

So as far as I can see there are now at least 3 levels of employer misconduct that will bring about an award in excess of reasonable notice.

Bad = Extension of the notice period

Really Bad: Aggravated damages

Really Really Bad: Punitive Damages

However there is a bigger problem. The Supreme Court of Canada in Honda Canada v Keays ( 2008 SCC 39) said this  about extending the notice period to compensate for bad employer behaviour.

Moreover, in cases where damages are awarded, no extension of the notice period is to be used to determine the proper amount to be paid. The amount is to be fixed according to the same principles and in the same way as in all other cases dealing with moral damages. Thus, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages. Examples of conduct in dismissal resulting in compensable damages are attacking the employee’s reputation by declarations made at the time of dismissal, misrepresentation regarding the reason for the decision, or dismissal meant to deprive the employee of a pension benefit or other right, permanent status for instance (see also the examples in Wallace, at paras. 99‑100). 

Isn’t the law wonderful ?

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In Salina v Investors Group Financial Services Inc., 2026 BCSC 1168 (CanLII)

Justice Morishita had a situation where a dependant contractor had the following termination clause:

10. TERMINATION

This Agreement may be terminated at any time by either party, with or without cause and with or without notice or any compensation in lieu of notice and, without limitation, may be terminated by [Investors Group] upon the breach by the Consultant of any of the terms, conditions or provision of this Agreement. On any termination or pending termination of a Consultant, [Investors Group] shall provide its clients with the appropriate notice.

In other words, this seemed to allow the defendant Investors Group to terminate with zero notice .

As the Judge notes, dependant contractors are not employees so they are not covered by the Employment Standards Act.

In Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 98 the Court cited the following as the basis for the implied term of reasonable notice:

“The presumption at common law that a contract of employment for an indefinite term is terminable only on reasonable notice would have been rebutted by the clear language of the contract specifying shorter notice periods.”

The issue then is zero notice a ” shorter notice period”

The Judge said NO.

[100]    In my view, “no notice” or “zero notice” is incompatible with “some other period of notice” or a “shorter period of notice.” “Some other period of notice” or a “shorter period of notice” implies some other amount, but not nothing. Because the Employment Standards Act does not apply to Mr. Salina, the shorter notice period could have been any amount of time, even one day.

[101]    Because the Termination Provision does not clearly specify any other period of notice, it does not rebut the common-law presumption of entitlement to notice and is therefore unenforceable.

What a difference a day makes.

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In Dhaliwal v. Richter International Ltd., 2025 ONCA 522 (CanLII) Justices Wilson, Rhaman and Copeland dealt with the issue of arbitrator bias.

The parties chose the arbitrator together. Then one party found out that the opposing lawyer was also using the same arbitrator on another file. That party brought a motion before the arbitrator requesting that the arbitrator recuse. The arbitrator refused and ordered costs against the party who brought the motion.

The losing party brought an application in ONSC to overturn the arbitration award. They lost. They appealed. They lost again.  They sought leave to the SCC. This was dismissed .

This is what the ONCA said:

[8]        We reject the appellants’ contention that the terms of the arbitration required the arbitrator to disclose that he and the respondents’ counsel were involved in another arbitration. The arbitrator was required to disclose circumstances that could give rise to a reasonable apprehension of bias. Simply being involved in a separate arbitration with one party’s lawyer is not, on its own, such a circumstance. The parties had no agreement that they could only select an arbitrator that neither had worked with before. Nor did the terms of the arbitration agreement require the arbitrator to disclose any previous involvement with the parties’ lawyers. We observe that it is not uncommon for lawyers to select arbitrators for the very reason that they have worked with those arbitrators before. There is no merit to the appellants’ submission that any non-disclosure created a reasonable apprehension of bias.

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