Canadian HR Reporter

N E W S 8 www.hrreporter.com How will COVID-19 have an impact on notice periods? Figuring out severance in an uncertain economy is never easy, especially during a pandemic. Certain sectors have thrived while others have suffered. But a recent court decision provides a glimpse of what's to come, writes Sarah Dobson WHEN it comes to the pandemic and notice periods, it's a tale of two economies, says Boris Subara, an asso- ciate at Gowling in Ottawa. "COVID-19 has not had a negative impact on every single industry and every single employer, and some employees will actually be able to find comparable employment quite fast and will not have to struggle with the fact that the pandemic is hurting the very issue. In Yee vs. Hudson's Bay, a 61-year-old director of product design and development called Melvin Yee who worked for Hudson's Bay for more than 11 years was terminated with a base salary of $162,000 (and bonuses and benefits) in August 2019. The employment contract had an unenforceable termination clause and the termination was without cause so the court had to figure out the appropriate notice period. Yee was looking for 18 months while HBC felt 11 months would suffice. While Yee's counsel raised the issue of COVID and a difficult employment market, Judge Grant Dow cited the 2015 Ontario case Holland v. Hostopia. com Inc., which stated 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." As a result, terminations that occurred before the pandemic "should not attract the same consideration as termination after the beginning of the COVID pandemic and its negative effect on finding comparable employment." While the court ultimately awarded Yee 16 months' notice citing his age, length of service and managerial global economy, because their particular industry may be thriving," he says. "Recovery is going to be divergent. Some industries will recover very quickly and others will struggle. So, that needs to be taken into consideration. It's not black or white." There is plenty of data suggesting that high-wage jobs, for instance, have surged, while low-paying jobs have been lost, says Subara. "Hopefully, the courts will recognize that a hairdresser is not going to be in the same situation as a software developer. Hopefully, the courts will be able to strike a balance when looking at that context." Recent case highlights issue In looking at reasonable notice, it's supposed to be assessed at the time of the termination, he says. "We can't make any assumptions or we can't look into the past to find out what happened after the termination. Technically, the assessment is supposed to be what the entitlement would have been at the time of termination. But, inevitably, [lawyers] do tend to take those subsequent events into consideration when they argue their cases." A recent Ontario case touched on this role, it seems to be recognizing that "terminations of employment that happened during COVID would have longer notice periods if the individual is able to establish that there was a negative effect on their ability to find similar employment," says Deborah Cushing, a partner at Lawson Lundell in Vancouver. In looking at notice determined at common law, the courts are looking at four factors: age, length of service, occupation and the availability of similar employment. "For employees in certain industries, COVID would have a significant impact on their availability to find opportunities or to find similar employment, and we anticipate that notice periods would be increased because of that," she says. Timing is everything The uncertainty around notice periods is an ongoing problem, says Barry Fisher, an employment law mediator based in Toronto. "And here we have an example of judges again, frankly, making it more confusing. Now we have to figure out the COVID date and whether that has any relevance." There came a point when people realized that we were in for the long haul with the pandemic, and newspapers talked about "the new normal," he says. "Now, apparently, if you're a mid- TOP SECTOR LAYOFFS DURING PANDEMIC IN CANADA Source: Statistics Canada 62.1% Accommodation and food services 47.2% Manufacturing 45.1% Retail 45% Arts, entertainment and recreation

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