Executive employee gets 12 months’ pay in lieu of notice after less than 4 years of service.
In the recent decision of Carroll v Oracle Canada ULC 2025 ONSC 4889 the court awarded an employee with 12 months’ pay in lieu of notice following approximately three and a half years of service.
The plaintiff, Mr. Carroll, was a salesperson. He was a 61-year-old, executive level employee who earned over $750,000 a year. Although the employer argued that Mr. Carroll had readily transferable skills and that a shorter notice should be awarded, the court did not buy the argument. The court specifically said that awarding between 2 to 2.5 weeks’ notice per year of service – while typical for most salespersons – did not apply in this case. The court reached that conclusion because Mr. Carroll’s skill set in the financial services industry and income level placed him into a more rarefied category of employment. The more specialized the position, the court held, the longer it takes an employee to find appropriate alternative employment. The court also held that higher wage earners may take longer to find comparable employment because there are fewer positions available.
With respect to the length of Mr. Carroll’s service, the court held that his shorter length service tended towards a disproportionately longer notice period than the commonly used one-month per year of service guidepost. The fact that the employer in this case failed to provide Mr. Carroll with a positive reference letter was another factor that weighed in favour of increasing the length of the reasonable notice period that Mr. Carroll ought to have received but did not. Moreover, Mr. Carroll was 61 years old at the time of his dismissal, and as such, it meant that that consideration should also be a factor in his favour. Age is a canonical factor in increasing the length of notice period an employee is entitled to, as it stems from the recognition that younger employees usually find it easier to find a job than older employees.
Finally, the court disagreed with the employer’s assertion that Mr. Carroll failed to mitigate the loss of his employment by looking for a job. The court reminded that employers need affirmative evidence to support a finding of lack of mitigation. The court regarded the employer’s allegation that Mr. Carroll failed to mitigate his damages as “nothing but a bald assertion unsupported by affirmative evidence.”
For more information about mitigation, please look at our blog entitled “Fired or terminated from your job? Why lawyers say that you must look for work!”
Ultimately, the court awarded Mr. Carroll 12 months’ pay in lieu of notice.
Our Thoughts
In addition to statutory forms of minimal compensation, employers may find themselves on the hook for significant damages that far exceed what employers ever thought to be reasonable when terminating the employee. This case is a clear illustration of the fact that courts will ensure to award what is fair under the circumstances, especially when examining the rights of older high earners holding unique positions that are hard to replace following dismissal. Ontario courts have even acknowledged the fact that short-term executive employees would have a hard time explaining the duration of their short service with the dismissing employer, thereby resulting in a more difficult time obtaining alternative employment upon termination. For information about this topic, please read our blog about executive employees.
We have also written extensively about common law notice, termination and severance pay and factors that can increase the notice period. For more information:
How Zeilkman Law Can Help
At Zeilikman Law, we have helped many professionals and executives or those who work in all types of specialized industries protect their employment rights when they have experienced a dismissal, layoff or were let go due to restructuring. We have helped employees ensure that the termination or severance package is fair and appropriate for the employee’s own set of unique circumstances.
If you are any employee who has experienced a dismissal and would like more information about these issues may affect your entitlements to compensation, please give Zeilikman Law a call at (905) 417-2227 or contact us here at to schedule a confidential consultation.
