The previously assumed 24-month "ceiling", or cap, for reasonable notice of termination continues to be smashed. In an earlier post I reviewed a number of cases in which the Canadian courts smashed the ceiling over the years. Recently, the Ontario Superior Court of Justice in Abrahim v. Silwin [1] rejected any maximum or cap -- whether it be 24 months for managerial employees or 12 months for non-managerial workers.
In Abrahim there were numerous plaintiffs each
"employed in a
non-managerial position, in a relatively unskilled job, at a low rate of pay". The plaintiffs were of varying ages and had different lengths of service. Their lawyer suggested "the following formula be
used in calculating the plaintiffs' damages, subject to mitigation:
(a) one months' pay for each year of service;
(b) subject, in any event, to a cap of 24 months."
Interestingly, while the Court disagreed with counsel's formula, it was still prepared to honour the request for a 24-month cap. However, in rejecting the idea of a ceiling for damages generally though, Gray J. wrote that "two of the plaintiffs had worked for one or more of the
defendants for at least 35 years, and were 63 years of age or older. I might
have decided to award more than 24 months' pay had such a request been made."
The decision in Abrahim should be read with some caution: Firstly, the Court was dealing with a motion for default judgment and, thus, there was no lawyer present arguing for the defendant employers. In addition, Gray J's comments with regard to two of the plaintiffs, quoted above, could be considered obiter (something said in passing and not actually part of the Court's ruling).
Nevertheless, Abrahim reflects a growing trend and both employers and employees should take reasonable notice -- pardon the pun!
--------------------------------------------------------------------------------------------------------------------------[1] 2012 CarswellOnt 13870; 2012 ONSC 6295
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