In Currie v Nylene Canada Inc., 2022 ONCA 209, the Ontario Court of Appeal upheld a lower court’s decision to award an employee twenty-six months of financial compensation for wrongful dismissal (severance package).
In agreeing with the trial judge’s decision that the wrongfully dismissed employee was in a “unique situation,” the court reinforced the following exceptional circumstances justifying a wrongful dismissal award that exceeds the typical 24-month “cap” in severance package awards:
(i) the employee left high school to start work (at age 18) as a twisting operator at the employer and worked there for her entire career, ultimately rising to become the Chief Operator reporting to the Shift Leader;
(ii) after working for the employer for 40 years, her employment was terminated near the end of her career, when she was 58 years old;
(iii) the employee had very specialized skills making it very difficult for her to find alternative suitable employment. Moreover, at the time of her termination, her computer skills were limited. She made diligent efforts to attempt to gain basic computer skills and mitigate her damages but the trial judge was not convinced she would succeed in securing alternative employment;
(iv) the work landscape had evolved significantly since the employee had entered the workforce in 1979 and, as her experience was limited to working for the employer and its predecessors in one manufacturing environment, her skills were not easily transferable; and
(v) Given the employee’s older age, limited education and skills set, the termination “was equivalent to a forced retirement.”
In doing so, the Ontario Court of Appeal reiterated that the correct test to apply when awarding a severance package (or wrongful dismissal damages) is to calculate reasonable notice using the factors identified in landmark decision of Bardal v. The Globe and Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.). When doing so, judges must be cognizant of the fact that other decisions have insisted on only exceeding the typical 24-month cap on reasonable notice periods (severance package entitlements) when there are clear “exceptional circumstances,” including the decisions of the court in Lowndes v. Summit Ford Sales Ltd. 2006 CanLII 14 (ON CA) and Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, 435 D.L.R. (4th) 573.
Aside from the employee’s claim for a severance package for wrongful dismissal, the court also sided with the lower court regarding the employee’s total years of service. In particular, the argued argued that there was a “break in service” because the employee had earlier “retired” from her job after 38 years of service in order to access her pension plan benefits, and before she signed a new employment contract to rejoin the company for 1.5 years. In rejecting the employer’s argument, the court concluded there was no break in service, as she never agreed to stop working, and only signed the documents given to her by the employer simply to begin receiving her pension plan benefits after receiving assurance her employment would remain the same, including her salary, benefits and total seniority.
Wrongful Termination Employment Lawyer for Severance Package
If you are an employee who was recently terminated from your job and you have questions about your rights or entitlement to a financial severance package, please contact Bune Law, Toronto Employment Lawyer. Bune Law is an employment law firm located in Toronto with a focus on employees rights, including wrongful dismissal, severance package review and negotiations and employment contact reviews. Please call for a consultation with an experienced employment lawyer to discuss your matter at 647-822-5492, or fill out this quick form.
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