Notice Awards Moving Up

Written on behalf of Peter McSherry
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General Rules

The fundamental guidelines for determining an award of “reasonable notice” or wrongful dismissal damage awards have been in place for many years. There is not a fixed set of factors as there exist many unexpected nuances, but the basics may be fairly stated to be:

  1. The character of the employment;
  2. The length of service;
  3. The age of the employee at termination;
  4. The availability of similar employment, given regard to the training and qualifications of the person terminated.

This being said, this summary is not much help in determining the real awards. The real-life awards by judges will form the basis of comparison for what to expect a court may award.

History – A Moving Target

At one time many years ago, a high side award was considered to be six months.  In what was then considered to be a dramatic departure from this idea, an Ontario court in 1960 awarded 12 months.

This number has been gradually moving upwards over the years since 1960. In 2006, an Ontario Court unofficially set the expected high side number as 24 months. It did leave the door slightly ajar, noting the possibility of “exceptional circumstances”.

There have been far too many cases awarding sums in excess of 24 months since that date to make the reasoning based on unusual facts.

Thirty Months or More?

A recent Ontario decision not only awarded 30 months, but the court also mused that perhaps the correct award should have been set at 36 months. The plaintiff had not asked for such an amount.

In this case, the plaintiff was a 62 year old Senior Vice President with 37 years of service on termination, certainly dramatic, but not unheard-of facts. The court accepted the evidence that he had intended to work until age 65 and also that there was no similar employment available.

Given that Ontario law has no upper limit on retirement age, the prospect of an even more substantial award lingers on the horizon.

Clearly the proposition that there is some fixed ceiling on a notice award is not viable.

Get Advice and Know Your Rights

This issue of the dynamic extent of notice periods is important to understand. The law is not static. This is an issue which requires solid legal advice for all persons facing termination or even being asked to sign a limiting employment contract.

Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation