In Currie v. Nylene Canada Inc., 2022 ONCA 209, the Ontario Court of Appeal (OCA) dismissed the employer’s appeal of a lower court decision in which trial judge held “exceptional circumstances” existed to justify making an award that exceeded the 24-month “high end” amount of reasonable notice for long-term employees and awarded 26 months’ salary in lieu of notice. The Ontario Superior Court had held that “combining all of the factors set out in Bardal” (i.e., character of the employment, the length of service, the employee’s age, and the availability of similar employment), the employee demonstrated the existence of exceptional circumstances.

The employer appealed the trial judge’s damage award on two grounds:

• The trial judge erred when he used the period from 1979 until 2018 to determine the employee’s period of reasonable notice. He should have used June 2017, when she retired and was then rehired, until December 2018. Her retirement in 2017 constituted a break in service of her employment such that her immediate re-hiring “re-set her years of service clock back to zero”; and
• The trial judge erred in law by exceeding a maximum reasonable notice period of 24 months as there was no basis in this case to justify a longer notice period.

Decision

Both grounds of appeal failed.

Years of Service for Purpose of Determining Period of Reasonable Notice

With regard to the first ground of appeal, the OCA accepted the trial judge’s conclusion that the retirement/re-hiring...

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