Sunday, 30 May 2021

COVID-19 and Reasonable Notice Calculations – The State of Affairs at the End of May 2021

It is the end of May 2021. The COVID-19 pandemic has been a reality for approximately 15 months in Ontario. The legal system has changed in ways seemingly unimaginable at the end of 2019: Appearances for scheduling matters by video rather than in-person attendance? Remote commissioning of affidavits? Full blown hearings by video conference? Service of documents by email rather than the beloved fax?! The procedural elements of the legal landscape of 2021 are practically unrecognizable from what it was a year and a half ago.

So what of the substantive law of wrongful dismissal and the calculation of reasonable notice?

Since the pandemic was declared, plaintiffs’ counsel has advanced the position that the disruption associated with same means an automatic extension of the reasonable notice period due to dismissed employees. But has the judiciary agreed?

Decisions of the Ontario Superior Court

The case currently in vogue for the proposition that a dismissal during the pandemic necessitates a longer notice period is Yee v Hudson’s Bay Company, 2021 ONSC 387 (CanLII) (released January 18, 2021.) In that case, Justice Grant R. Dow wrote:

[21] In support of [Plaintiff]’s position, I was directed to the statement by Justice Perell in Paquette v. TeraGo Networks Inc., 2015 ONSC 4189 (at paragraph 27) that “Economic factors such as a downturn in the economy or in a particular industry or sector of the economy that indicate that an employee may have difficulty finding another position may justify a longer notice period”. However, that statement needs to be considered with the statement in Holland v. Hostopia.com Inc., 2015 ONCA 762 (at paragraph 61) that “Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”.

[22] It seems clear terminations which occurred before the COVID pandemic and its effect on employment opportunities should not attract the same consideration as termination after the beginning of the COVID pandemic and its negative effect on finding comparable employment.

The inference one takes from those paragraphs is that if a termination occurred after the beginning of the COVID pandemic and its “negative effect on finding comparable employment,” then the notice period would likely be longer- but has that been said?

In Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 2133 (CanLII) (released March 31, 2021), Justice Pierre E. Roger referenced the Yee decision and wrote:

[64] By February 19, 2020, the possibility of a global pandemic was discussed. Cases had been reported in Asia, parts of Europe, and some had been reported in the United States. A global health emergency was brewing, and there existed at least the threat of a global pandemic, although most were not expecting what was about to happen. I take judicial notice that by February 19, 2020, there was the threat of a possible global pandemic. This threat created uncertainty about what might happen, including how our economy might fare, if a global pandemic ever became a reality. This degree of uncertainty, which existed on February 19, 2020, is one of the many factors that I consider in assessing the reasonable period of notice applicable to the circumstances of this case: Yee v. Hudson’s Bay Co, 2021 ONSC 387, at paras. 21 – 22.

While this statement is closer to clarity, all Justice Roger said is that the degree of uncertainty, which existed on February 19, 2020, was “one of the many factors” he considered in assessing the reasonable period of notice. What effect such consideration had on the court’s decision is left unstated.

Even more recently, in Skowron v. ABC Technologies Inc., 2021 ONSC 3734 (CanLII) (released May 21, 2021), Justice Fred Myers wrote:

[30] In addition to the Bardal factors, it is relevant that we are in difficult economic times at present. I have no indication that the job market for sixty-plus year old project engineers is particularly buoyant in Toronto during the third wave of the pandemic.

While that statement yet closer to the court stating “employees will receive more notice if terminated during the pandemic,” it is still nuanced.

Commentary

For all of the changes to the legal system wrought by this pandemic (many of them welcome and overdue,) it is either amusing or comforting that the seminal authority on how to calculate reasonable notice remains a decision from 1960.

As Justice Myers noted at paragraph 6 of his reasons for decision in Skowron, “Chief Justice McRuer’s seminal words from [Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC)] remain controlling today:”

The reasonableness of the notice must be decided with reference to each particular case, having regard to the 'character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

Moreover, and as others have noted, all COVID-19 really is, if anything at all, is an impact on the availability of similar employment. And, while many will argue that COVID-19 has had a negative impact “on the economy,” it is important to remember that the “economy” is not a singular entity. Unquestionably, the pandemic and the public health measures introduced in an attempt to bring it to heel have destroyed certain segments of the economy rendering the “availability of similar employment” practically nil. However, other aspects of “the economy” have never been busier: public health officials, research scientists, information technology professionals, mental health workers, and (I would suggest) employment lawyers, would be on that list. Persons (somehow) terminated from employment in one of those professions might have a difficult time arguing that the effects of the pandemic resulted in fewer job opportunities, thereby necessitating an extended notice period.

So, is COVID-19 a game changer for wrongful dismissal cases? The answer (as of now) would be appear to be “yes,” if we’re talking about procedural elements, but “no,” if we’re talking substantive law.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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