In Currie v Nylene Canada ( 2021 ONSC 1922) Justice Smith had a situation where it was found that there were special circumstances which justified going over the general rule that 24 months notice was the maximum that a Plaintiff could recover.
This is what the Judge said about why this case had exceptional circumstances :
84 The Ontario Court of Appeal has recently held in Dawe that exceptional circumstances will be required in order to support a notice period that exceeds 24 months. I acknowledge that the cases relied upon Ms. Currie predate Dawe but there are worthy of consideration because they share some similarities to the case at bar. When combining and applying all of the factors to Ms. Currie’s unique situation, I am of the opinion that taken as a whole, it supports the conclusion that there are exceptional circumstances:
a. Ms. Currie left high school to start working at BASF as a temporary twisting operator, earning $4.50 per hour. She secured this job through her father who had worked there for over 30 years until his retirement in 1999. She was eventually promoted to a supervisory position and she has faithfully remained with one employer (Nylene and its successor employers) for 39 years. Her entire working life has been dedicated to working at the Arnprior plant. She has known nothing else.
b. At the time of termination, Ms. Currie was 58 years old. She was in her twilight working years, closing in on the end of her career.
c. She has worked and developed skills in a very specialized field (fiber production operation). Finding similar employment, as described later in this decision, has not been easy. Ms. Currie has made diligent efforts to mitigate and attempt to gain basic computer skills. That said, I am not convinced that she will succeed in securing alternative employment, by no fault of her own.
d. Since Ms. Currie entered the workforce in 1979, the work landscape has evolved and changed significantly. Ms. Currie’s experience has been limited to one employer (Nylene and its predecessors), in one type of environment (specialized manufacturing job), which makes it very difficult to transfer her skills to a new employer.
e. Given Ms. Currie’s age, limited education and skills set, the termination was equivalent to a forced retirement. She must compete with people that are much younger than her and that have a different set of skills that may be required such as advanced computer knowledge. She is not well equipped to effectively compete in today’s market or secure comparable employment.
85 Considering Ms. Currie’s unique situation and combining all of the factors set out in Bardal, I conclude that Ms. Currie has demonstrated the existence of exceptional circumstances.
My Comments :
The Court of Appeal in Dawe was well aware of the previous cases involving notice periods of over 24 months. By setting the ceiling at 24 months except for exceptional circumstances, they were implicitly overruling those same cases that the Plaintiff was relying upon in this case.
Moreover every one of the factors that this judge sees as exceptional is already taken into account in the Bardal Factors. How can a factor that goes into the Bardal analysis be seen also as an exceptional circumstance? Should not these exceptional circumstances be limited something else that affected the Plaintiff’s ability to obtain employment ? For instance, if an employer alleged just cause without reasonable grounds or where the employer took active steps to obstruct the Plaintiff’s re-employment.
I have been observing the issue of how to determine notice periods all my entire professional career. I had the naive hope that over time the issue of predicting notice periods would become more certain to both employers and employees and therefore avoid unnecessary lawsuits over notice. This case puts us back to the pre Dawe days where there was even less certainty in a already uncertain world.
I feel that judges often do not have a sense on what goes on in the world outside their courtrooms. We all know that 99% of these cases are settled. Settlements are easier to achieve when there is more predictability in the outcome. Since Dawe, both employers and employees knew that 24 months was the realistic maximum and that it was quite easy to hit that mark. These two factors has made long service cases easier to settle. Now we will be back to Plaintiffs claiming 30 months notice and Defendants responding with 16 months.
This is not a good thing.