How do you calculate notice period? 


Case: Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130

notice period is a period of time it should take for the terminated employee to find a comparable employment.  The goals of the Employment Standards Act (ESA) is to determine the basic Bardal factor to determine the eligibility of the employee as stated in Filiatrault v. Tri-County Welding Supplies Ltd.

Filiatrault v. Tri-County Welding Supplies Ltd., 2013 ONSC 3091, at paragraphs 54 and 59.

[32] The principles applicable to reasonable notice include:
(a) age of the employee;
(b) the character or nature of the employment;
(c) the length of service to the employer; and
(d) the availability of similar employment, having regard to the experience, training and qualifications of the employee.

Bardal v. Globe and Mail Ltd., 1960 CanLII 294 (ON SC)

In Dawe v. Equitable Life Insurance Company, Mr. Dawe's employment was terminated without cause after 37 years of employment with Equitable Life Insurance.  He had difficulty finding a comparable job for 36 months after his termination.  The dispute between the parties is in the calculation of damages, specifically to the appropriate notice period and entitlement under bonus plans.

Mr. Dawe's position: claims entitlement should be 30 months' notice and full payment to LTIP and STIP in that notice period.

Equitable Life's position: claims the notice period should be 24 months' and the LTIP and STIP payment should be limited to the terminal amount as calculated under the respective plans.

Important points the court considered through paragraphs 24-29 that is worth knowing:
- an employer owes a duty to the employee to act fairly and reasonably.
- the financial loss occurred for Equitable Life was missed by Mr. Dawe but the same for the president and the board of directors, they too had obligation for oversight.

As a general principle, 24 months has been identified as the maximum notice period in most cases.  In Lowndes v. Summit Ford Sales Ltd., 2006 CanLII 14 (ON CA), Cronk J.A. expressed this view in the following manner at para. 11:
[11]      Although it is true that reasonable notice of employment termination must be determined on a case-specific basis and there is no absolute upper limit or 'cap' on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months:  see Baranowski v. Binks Manufacturing Co., [2000] O.J. No. 49 (S.C.J.) at para. 277 and Rienzo v. Washington Mills Electro Minerals Corp., [2005] O.J. No. 5126 (C.A.).

For a long time, the usual retirement age was considered to be 65, this mandatory retirement was abolished in 2006 in Ontario to protect against age discrimination.  http://www.ohrc.on.ca/en/code_grounds/age

Many employees continue to work past age 65.  This case acts as an important mark to recognize that each case is unique.  Presumptive standards no longer apply.  The usual 24 months' notice period was granted to 30 months, meaning, the Bardol factor for Mr. Dawe was on the higher end compared to other cases.

It is important to know that not all cases follow suit. Speak to a representative today to see what can be done for you.

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