Ontario Court of Appeal Affirms Trial Judge Decision to Award Common Law Notice of 26 Months’ Due to “Exceptional Circumstances”

In Currie v Nylene Canada Inc., 2022 ONCA 209 (“Currie”), the Ontario Court of Appeal (“ONCA”) upheld the trial judge’s decision that a period of 26 months’ reasonable notice upon termination was appropriate due to exceptional circumstances. Currie illustrates the type of “exceptional circumstances” that may cause a judge to extend reasonable notice entitlements beyond the traditional 24 months cap.

Background

Ms. Diane Currie (“Ms. Currie”) worked for Nylene Canada Inc. (“Nylene”) from 1979, when she was 18 years old, until 2018. Ms. Currie started as a twisting operator and worked her way up to become a Chief Operator. In June 2017, Ms. Currie signed a new employment agreement with Nylene for the sole purpose of accessing her pension. Nylene took the position that Ms. Currie had retired from her role in June 2017, constituted a break in service that re-set her years of service to zero. Ms. Currie, however, testified that she had relied upon the representation made to her by Nylene that her tenure would not be affected by signing the new agreement. In December 2018, Ms. Currie, along with 16 other employees, was terminated without cause due to a business decision to discontinue part of the employer’s operation.

Trial Judge’s Decision

Based on Ms. Currie’s testimony, the trial judge held that there was no break in service and as such, the appropriate length of employment for the purpose of determining the reasonable notice period was 39 years. In concluding that exceptional circumstances existed to warrant 26 months’ notice, the trial judge provided the following considerations in his analysis:

1. Ms. Currie started working at Nylene in high school and had remained loyal to a single employer for 39 years.
2. Ms. Currie was 58 years old at the time of termination and nearing the end of her career.
3. Ms. Currie’s skills were highly specialized (fiber production operation) and not easily transferrable, thereby making it difficult for her to find alternative suitable employment. This difficulty was compounded by Ms. Currie’s limited computer skills.
4. Ms. Currie’s termination “was equivalent to a forced retirement”. Based on her age, limited education and skills, she was not well equipped to effectively compete in the job market or secure comparable employment.

The Court of Appeal

Nylene appealed the trial judge’s decision on two grounds: (1) the trial judge erred by using the period from 1979 to 2018 as the basis for determining the period of reasonable notice (rather than from June 2017 onwards when Ms. Currie signed a new employment contract), and (2) the quantum of notice awarded was excessive in light of the circumstances.

The appeal was dismissed in its entirety.

First, the Court of Appeal found that based on the findings of fact made by the trial judge, it was open to him to conclude that Ms. Currie’s years of service were not affected by the signing of the June 2017 agreement. As such, the Court of Appeal did not find any palpable and overriding error on that point.

Second, the ONCA agreed with the trial judge’s articulated grounds to demonstrate that Ms. Currie’s “unique situation” was an exceptional circumstance that warranted a higher notice period. The trial judge’s award of damages in lieu of reasonable notice was upheld.

Takeaways for Employers

It is important for employers to note the Currie decision as an example of what Ontario courts may consider to constitute “exceptional circumstances” that would warrant notice in excess of the traditional 24 months ceiling moving forward.

For advice specific to your situation, consider contacting your regular lawyer at Rae Christen Jeffries LLP.