Ontario Court Awards 27 Months’ Notice for Wrongful Dismissal

Written on behalf of Peter McSherry

In the recent decision Markoulakis v SNC-Lavalin Inc., 2015 ONSC 1081 (Ont. Sup. Ct.) [Markoulakis], Justice Andra Pollock summarily awarded a reasonable notice period of 27 months to an Ontario employee who was dismissed without cause. While Canadian courts typically treat 24 months as the upper limit of reasonable notice awards, Justice Pollock held that the exceptional circumstances of this case, including the plaintiff’s 40.66 years of service, warranted an award in excess of this rough upper limit.

In Markoulakis, the plaintiff, Eftihios Markoulakis, had spent his entire 40-year career working for the defendant employer, SNC-Lavalin Inc. Markoulakis’ employment was ultimately terminated as a result of a shortage of work. At the date of his termination, the plaintiff was 65 years old and was earning $129,272 annually as a Senior Civil Engineer at SNC-Lavalin Inc.

In calculating the amount of reasonable notice to which Markoulakis was entitled, Justice  Pollock considered several factors as outlined in Bardal v. Globe and Mail Ltd., [1960] O.J. No. 149 (H.C.J.), including:

• the character of employment;
• the length of service;
• the age of the employee; and
• the availability of similar employment having regard to the experience, training and qualifications of the employee.

Based on the foregoing factors and a review of wrongful dismissal case law, Justice Pollock concluded that 27 months’ notice was appropriate in the circumstances. In reaching this conclusion, the Court emphasized that the plaintiff had only worked for one employer throughout his 40-year career, the job market for senior engineers at the plaintiff’s level was highly competitive and the plaintiff was over 65 years old by the date of trial.

Despite accepting that Markoulakis’ prospects for re-employment were low, the Court nevertheless concluded that the plaintiff was still obligated to search for employment during the notice period. Justice Pollack held that SNC-Lavalin Inc. should pay the plaintiff the amount owed by way of monthly instalments for the balance of the notice period. Any business or employment income earned by Markoulakis during the reasonable notice period was to be deducted from such monthly payments.

To find out more about wrongful dismissal and reasonable notice entitlements, contact employment lawyer Peter McSherry online or at 519-821-5465.

To read the full decision, click here.