27 Jan 2017
January 27, 2017

REASONABLE NOTICE ROUNDUP FOR 2016

The most common question from clients with respect to terminations without cause and without notice in the absence of an enforceable agreement is “How Much Notice?”.  Courts will look at four key elements to determine how much is reasonable notice:  age, length of service, position and the availability of similar employment having regard to the employee’s skills and qualifications.  The court will often look at economic circumstances but will not give that factor undue weight.  Contrary to popular belief there is no legal rule of thumb of “one month for each year of service”.  The highest period of notice, subject to a few exceptions, is 24 months.  Please bear in mind the fact that each case will be decided on its own facts and there is no litmus test.   Further the amount of notice will not always define the amount of damages as the employee must mitigate her damages and must also prove her loss (e.g. lost benefits or bonuses).  On the other hand the employee may be awarded additional punitive, exemplary or aggravated damages.

The following cases from this past year will give you some idea of the courts’ present thinking on the matter. A bit of good news for employers is found in Cabott v Urban Systems Ltd where the Court of Appeal reduced the amount of notice by 1/3 given the short period of service. These can be very important factors in each case especially dealing with senior executives whose compensation can often exceed $20,000 per month.

CASE

POSTION

COMP

AGE

SERVICE

NOTICE

O’Dea v Ricoh Canada Inc.

salesman

$103,00

57

7 years

9 months

Keenan v Canac Kitchens [dependent contractors]

husband and wife supervise and install kitchens as contractors

$125,000

63/61

32/25

26 months

Saliken v Alpine

mechanic

54

15 months

6 months

Waterman v Mining Association

VP Env & Tech

45

3 ½ yrs

10 months

Cabott v Urban Systems Ltd

regional planner/leader

53

14 months

4 months

Pakozdi v B & B

bidder/estimator

$125,000

55

13 months

8 months

Cheong v Grand Pacific

D’tor Sales/Mkting

$60,000
+ bonus

59

13 yrs

14 months

Luchuk v Starbucks

Sr Regional Mgr–signficant responsibilities

$194,665
+ bonus $8500

48

18 years

18 months

Smith v Pacific Coast Terminals

manger/engineer

$171,000
+ 30% bonus

48

16 years

19 months

Ozorio v Canadian Hearing Society

Reg D’tor/Sr Mgr

$102,000

60

30 years

24 months

TCF Venture v Malones

CFO

$100,000*

?

3.5 years

9 months

Gust v Right of Way

“jack of all trades” not certified tradesman

$60,000

31

13 months

2 months

Schinnerl v Kwantlen

D’tor programs

$99,000

48

9 years

10 months

Bishop v Rexel

Buyer (clerical not specialized

$52,000

61

27 years

20 months

Price v #’d Company

Manager

$77,000 + Commission

47

20 years

20 months

 

Michael Weiler practices employment and labour law including human rights and prevention of workplace harassment/bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca .  Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law.  Michael can be contacted at mweiler@weilerlaw.ca  . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at cweiler@weilerlaw.ca  or call her at 604 336 7427.

  1. Disclaimer
    The content in the Michael Weiler Employment + Labour newsletters is for your general information and should not be taken as legal advice.  If you have a specific problem, please contact Michael Weiler to discuss your situation.