The Court of Appeal upholds 26-month notice period in Currie v. Nylene Canada Inc., 2022 ONCA 209

The Court of Appeal upholds 26-month notice period in Currie v. Nylene Canada Inc., 2022 ONCA 209

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”.

Background

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.

Trial Decision

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.

Appeal

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.

Takeaways

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.

Insights & Commentary

A Great New Resource: Civil Procedure and Practice in Ontario - photo
  • Commentaries

A Great New Resource: Civil Procedure and Practice in Ontario

Stieber Berlach LLP is pleased to share an important new free textbook, Civil  Procedure and Practice in Ontario, which includes contributions from Katie Di Tomaso as an author of two chapters annotating sections 1-5 and 15-24 of the Limitations Act, 2002 and Christian Breukleman as an author of the chapter on Rule 29 of the Rules of Civil Procedure dealing with Third Party Claims. CPPO is … Continued

by

Human Rights Tribunal Finds “Good Faith” COVID-19 Restrictions Can Still Be Discriminatory, Sets Benchmark Monetary Award. - photo
  • Commentaries

Human Rights Tribunal Finds “Good Faith” COVID-19 Restrictions Can Still Be Discriminatory, Sets Benchmark Monetary Award.

JL v. Empower Simcoe 2021 HRTO 222 In a recent decision confirmed by the Human Rights Tribunal of Ontario (the “HRTO”) May 7, 2021 (2021 HRTO 348), the HRTO has ruled that COVID-19 restrictions and protocols accepted to benefit the health of the public can still be discriminatory under the Ontario Human Rights Code (the “Code”).  Restrictions … Continued

by

Human Rights Tribunal Establishes Acceptable COVID-19 Accommodation Process and Requirements for Policies - photo
  • Commentaries

Human Rights Tribunal Establishes Acceptable COVID-19 Accommodation Process and Requirements for Policies

Rishi Sharma v. City of Toronto 2020 HRTO 949 In the midst of the COVID-19 pandemic, the HRTO evaluated municipal by-laws establishing mandatory masking.  In that process, it also outlined the expected process for requesting exceptions to these by-laws (“accommodation”) under the Ontario Human Rights Code (the “Code”). The Applicant, in this case, was a member of … Continued

by

Appeal Board Upholds Defence of Jurisdiction for Professionals in Non-Therapeutic Roles. - photo
  • Commentaries

Appeal Board Upholds Defence of Jurisdiction for Professionals in Non-Therapeutic Roles.

2021 CanLII 7968 (ON HPARB) The Ontario Health Professions Appeal and Review Board (“HPARB”) has upheld a rare defence and approach to defending professionals in matters before their professional colleges.  In a case successfully defended by Stieber Berlach at both the College of Nurses (“CNO”) and HPARB, this 2021 decision sustained the ability of the … Continued

by

Should MDS Inc. V. Factory Mutual Insurance Company (FM Global) Impact COVID-19 Business Interruption Claims? - photo
  • Commentaries

Should MDS Inc. V. Factory Mutual Insurance Company (FM Global) Impact COVID-19 Business Interruption Claims?

The novel coronavirus causing the COVID-19 infection is likely to impact insurers in several ways. In addition to an anticipated decrease in premium collection due to cancellation of policies, and a probable shrinking of investment returns, it is anticipated that there will be numerous claims that arise from the pandemic, including business interruption claims. The … Continued

by

No compensation without causation in a breach of fiduciary duty claim - photo
  • Commentaries

No compensation without causation in a breach of fiduciary duty claim

In the recently released decision, Stirrett v. Cheema, 2020 ONCA 288, the Court of Appeal opined on the role causation plays in awarding damages for a breach of fiduciary duty. The Court held that the trial judge had erred in awarding compensation for a breach of fiduciary duty when causation had not been proven. The Court … Continued

by

All News