In Miller v. Alaya Care Inc., 2025 ONSC 1028 (CanLII) Justice Carroccia had a situation of a 62 year old VP making over $250K with only 7 months service who was terminated without cause. Having set aside an illegal termination clause, the Judge focussed on the issue of whether the Plaintiff had been induced to leave her previous job of 12 years and if so, what effect that would have on the notice period.
First the Judge listed these factors to consider :
1. the reasonable expectations of both parties;
2. whether the employee sought out work with the prospective employer;
3. whether there were assurances of long-term employment;
4. whether the employee did due diligence before accepting the position by conducting their own inquiry into the company;
5. whether the discussions between the employer and prospective employee amounted to more than the persuasion or the normal “courtship” that occurs between an employer and a prospective employee;
6. the length of time the employee remained in the new position, the element of inducement tending to lessen with the longevity of the employment; and
7. the age of the employee at termination and the length of employment with the previous employer.
Applying these factors to this case, the Judge said as follows:
[88] In my view, these discussions initiated by the defendant go beyond the normal “courtship” between an employer and prospective employee and amount to an inducement. The following circumstances support this finding:
1. The defendant reached out to the plaintiff first.
2. There were representations made by AlayaCare that the plaintiff’s experience would assist in “growing” the company.
3. Inquiries were made by AlayaCare as to the extent of the plaintiff’s renumeration with WellSky ( her previous employer of 12 years, editors note) , including bonuses and RSUs so that they could “lure” her.
4. AlayaCare had hired a number of people in 2021 as part of an “aggressive growth strategy”.
5. The defendant was prepared to go as far as indemnifying the plaintiff in the event that her previous employer commenced litigation against her for leaving them to join AlayaCare.
[89] As a result, I find that there were inducements offered to the plaintiff to lure her to leave her employment with WellSky to become an employee of AlayaCare. This factor favours a longer period of notice.
My comments :
Inducement is often pleaded but it rarely works. This case sets out the type of evidence that is needed to prove inducement .
Under most circumstances a 13 year Senior Executive who was 62 years of age would receive a notice period greater than 14 months. On the other hand, without inducement, a 7 month employee would never get 14 months notice.
Inducement seems to give you a notice period greater than your actual employment with the defendant but less than the combined service of the two employers. This recognizes that the Plaintiff is always taking a risk with a new employer but that no reasonable person would leave a secure job of long service without the expectation that the new job would last some significant period of time.
I do not usually list who the winning lawyer is, but in this case I make an exception because Plaintiff’s counsel was none other than this years winner of the Ontario Bar Association Randall Echlin Award for Excellence in Labour and Employment Law, Stephen Moreau of Cavalluzzo LLP.
Bragging Note : I was the recipient of this award last year.
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