You’ve probably heard it before: before you can terminate an employee who doesn’t have a contract, you must give them at least “reasonable notice” under the common law. The common law general rule of thumb is about 1 month for every year of service they have provided, give or take a number of considerations (e.g. their age, skill level, seniority, ability to find work elsewhere, opportunity to mitigate their damages, etc.). Now, the common law, for quite some time, was capped at around 24 months.
That was, until the 2011 decision of Hussain v. Suzuki Canada Ltd. [2011] O.J. No. 6355. In that case, Syed Hussain had worked for Suzuki Canada for 36 years and was almost 65 years old when he was terminated without cause. He held many different positions (e.g. assistant warehouse supervisor), which was a very important and valuable job. His job with Suzuki was full time and he had only worked there since coming to Canada in 1974. Suzuki decided to terminate his job as a result of restructuring due to economic issues. It tried to give him 9 months’ worth of notice. Hussain sued.
At trial, the Ontario Superior Court of Justice had to determine how much notice Hussain was entitled to. With respect to the commonly believed limit of 24 months, the Court held that:”
4 While there is no cap on the amount of reasonable notice of employment termination to which an employee may be entitled, and each case must be considered on its own particular circumstances, 24 months is usually the higher end of the range unless generally there are exceptional circumstances: Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (Ont. C.A.), at para. 11.
5 In my view, while each factor on its own may not be exceptional, the combination of all of the above factors amount to the kind of exceptional circumstances that warrant a 26 month notice period.
WOW! 26 months! And then guess what happened? In the recent case of Keenan v. Canac Kitchens Ltd., 2016 ONCA 79, which just came out last month, the Ontario Court of Appeal handed down another 26 month notice of termination judgement. In that case, Lawrence Keenan and Marily Keenan worked for Canac for approximately 32 and 25 years respectively (their average length of service was 28.5 years). They were 63 and 61 years old when they were terminated. They held supervisory, responsible positions. And for their entire working lives they earned income from Canac and relied upon it to support their family. In these circumstances, the Court of Appeal held that the trial jjudge’sfinding of 26 mmonths’notice was reasonable.
Bottom line: say goodbye to the 24 month limit in certain situations. These cases show that Courts will go beyond this upper limit because of the eemployee’sage and long-standing service, and inability to find replacement work.
Bottom line: an employer dentist can and should limit their liability when it comes to notice of termination by having a experienced dental law lawyer put team members on notice and slowly introduce employment agreements.
