Canadian HR Reporter

N E W S 8 www.hrreporter.com 'Exceptional circumstances' lead to 26 months' notice Though 24 months seemed to be a reasonable cap for employee notice periods, a recent Ontario court case delivered bad news to employers in stretching the limit for severance, writes Sarah Dobson THE employee presented a very sympathetic case. Having worked for the same company for 39 years, she was laid off at the age of 58 and given eight weeks of termination pay and 26 weeks of severance pay. Dianne Currie ended up suing for 26 months' severance — and she won, to the surprise of some who felt 24 months was an appropriate cap for severance pay — barring "exceptional circumstances." It's just a bad trend, says Barry Fisher, a mediator and arbitrator of both employment and labour relations matters in Toronto. In June 2017, she was advised that she satisfied the criteria to receive her accumulated pension plan, but she would be required to retire and then Nylene would offer her employment. Currie accepted the offer. However, in December 2018, Currie and 16 others were terminated. Currie's severance package included eight weeks of termination pay for $7,869 and 26 weeks of severance pay for $25,574 as Nylene felt there was a break in Currie's employment and service following her retirement. As a result, Currie sought damages including $77,379 for loss of remuner- ation. She later amended her claim to increase the amount of damages to $138,962 representing 26 months' notice, arguing there were exceptional circumstances that would warrant exceeding the base notice period of 24 months, as set out in the 2006 Lowndes v. Summit Ford Sales. In the end, Justice Marc Smith agreed with her assessment in his ruling Currie v. Nylene Canada, Inc., 2021 in the Ontario Superior Court of Justice. For one, there was no break in service with Currie's retirement in 2017, he said. "She relied upon the representations made to her that her employment condi- tions would remain the same, which meant that her status as a longstanding "The age-old problem is judges keep on saying, 'Every case is different.' No, they're not, actually. Thousands and thousands of people are terminated every year — they're not all different," he says. "We don't need to look at every single case differently. It's not a service to anyone. It's not a service to employers and it's certainly not a service to plaintiffs." But the facts were pretty compelling in the employee's favour, says Kevin Butler, an associate at Tierney Stauffer in Ottawa. "In the end… I think the judge was really motivated in this case to give [Currie] the remedy that she was seeking. And the employer really missed a bunch of things, didn't do a good job of papering and documenting the file. And that's ultimately, I think, what convinced the judge to rule in her favour." 39-year career includes pension Currie began working for Badische Canada in 1979 in Arnprior, Ont. as a twisting operator. By 2004, she was a chief operator of spinning/SDT/Zeftex, and that same year, the company was sold to Honeywell Nylon Canada, and the pension plan was replaced with an RRSP matching program. In 2005, Nylene purchased the Anrprior facility and Currie accepted a new offer of employment. employee and that her tenure would not be affected by her signing a new employ- ment agreement." 26 months granted As for determining wrongful dismissal damages, the modern approach is to apply the factors in the 1960 Bardal v. The Globe and Mail Ltd., said Smith in his ruling. He cited Currie's 39 years of service and limited education and skills, along with her inability to find alterna- tive employment after her dismissal by Nylene. "At the time of her termination, Ms. Currie was 58 years old. She was in her twilight working years, closing in on the end of her career. She has worked and developed skills in a very specialized field," said Smith. "Ms. Currie's experi- ence has been limited to one employer… in one type of environment… which makes it very difficult to transfer her skills to a new employer." Given these factors, the termination was equivalent to forced retirement, he said. "Considering Ms. Currie's unique situ- ation, and combining all the factors set out in Bardal, I conclude that Ms. Currie has demonstrated the existence of exceptional circumstances." ONTARIO SUPERIOR COURT OF JUSTICE DECISION Source: Currie v. Nylene Canada 1979 The year Diane Currie started working for her employer 58 The age at which Currie was dismissed from her job in 2018 26 The number of months of reasonable notice awarded to Currie $138,962 The total amount of severance for the 26-month severance

• Cover