In Currie v. Nylene Canada Inc., 2022 ONCA 209, the Ontario Court of Appeal upheld an award of a 26-month notice period on the basis of “exceptional circumstances”.
The plaintiff, Diane Currie, brought an action against her former employer after she was terminated. Ms. Currie started working for her employer in September 1979. In October 2005, the defendant Nylene purchased the facility where Ms. Currie worked and offered employment to Ms. Currie effective November 17, 2005. In December 2018, Nylene discontinued some of its operations and as a result, Ms. Currie and several other employees were terminated without cause.
Ms. Currie asked the trial judge to find “exceptional circumstances” and award a notice period of 26 months.
Trial judge confirmed that in determining the reasonable notice period, the factors in Bardal v. The Globe and Mail Ltd., 1960 CanLII 294, are to be applied in a flexible way. In applying the Bardal factors, the trial judge noted that the plaintiff started her employment at 18 years old and was terminated at 58 years old. She planned to continue working at Nylene until her retirement. She had worked her way up the from operator to Chief Operator. She had a good employment record. Ms. Currie had not been able to secure alternative employment following her termination.
In assessing Ms. Currie’s claim for a 26-month notice period, the trial judge noted that exceptional circumstances are required in order to support a notice period of more than 24 months. The determination of whether exceptional circumstances exist is discretionary and a fact specific inquiry.
The trial judge noted the following factors in concluding that exceptional circumstances did exist for Ms. Currie:
- Currie left high school to start working with BASF (Nylene’s predecessor) as a temporary operator earning $4.50 an hour. She secured this position through her father who had worked there for 30 years until his retirement. She was employed there for 39 years. Her entire working life was dedicated to working at Nylene and she had known nothing else.
- At the time of termination, Ms. Currie was 58 years old. She was in her twilight years and nearing the end of her career.
- Currie had worked and developed skills in a very specialized field. Finding similar employment would be difficult. She was attempting to learn basic computer skills; however, it was unlikely that she would be able to secure alternative employment.
- Since Ms. Currie entered the workforce, the work landscape had changed significantly. Her experience was limited to one employer in one type of environment which made it difficult to transfer skills to a new employer.
- Given Ms. Currie’s age, limited education and skill set, her termination was equivalent to a forced retirement. She had to compete with people who were younger than her and had different skills set that may be required, such as advanced computer knowledge. She was not well equipped to compete in today’s market or secure comparable employment.
Considering Ms. Currie “unique situation” as well as the Bardal factors, the judge concluded that exceptional circumstances existed and awarded a notice period of 26 months.
On appeal, Nylene argued that the trial judge erred in exceeding the maximum reasonable notice period of 24 months and that there was no basis to justify a longer notice period in Ms. Currie’s case.
In brief reasons, the Court of Appeal upheld the trial judge’s decision finding that he correctly stated that exceptional circumstances should exist to support a notice period exceeding 24 moths. The Court of Appeal concluded that Ms. Currie’s circumstances as listed by the trial judge gave ample support for his decision to award a 26-month reasonable notice period.
The decision in Currie is particularly notable given the Court of Appeal’s prior decision in Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512. In Dawe, the Court of Appeal reduced a 30-month notice period to 24 moths, holding that factors such as lengthy service, advanced age at termination, and difficulty finding new employment are “recognized” and “rewarded” by a 24-month notice period and do not establish exceptional circumstances.
It remains to be seen whether Currie is simply an outlier or if it represents a shift away from the presumptive cap of 24 months for the common law reasonable notice period.