Employment lawyers have been patiently waiting for Ontario’s courts to let us know if and how COVID-19 or coronavirus will influence the length of notice periods for terminated employees. The recent Ontario Superior Court decision of George v. Laurentian Bank Securities Inc., 2020 ONSC 5415, is one of those first decisions that perhaps in a cursory way answers this question. It remains to be seen how this body of law will develop in the future.
The plaintiff, Thomas George (“Mr. George”), brought a motion for summary judgment against the defendant employer, Laurentian Bank Securities Inc. (“Laurentian Bank”). Mr. George was hired by Laurentian Bank in November 2018 and his title was “Vice President Equity Trading.” His salary was $100,000 per annum and he was dismissed without cause by Laurentian Bank in March 2019 at the age of 58. At the time of his termination, Laurentian Bank paid him an amount equivalent to three weeks’ pay.
In paragraph 9 of the decision, the motion judge specifically sets out that Mr. George remained unemployed despite his mitigation efforts as Ontario “continued to be coping with the economic realities of COVID-19.” However, what is interesting in this case is that there is no mention as to whether or not counsel actually put forth the argument that COVID-19 should in fact increase the notice period. The motion judge also does not mention COVID-19 in their analysis of the Bardal factors as set out below.
The motion judge then makes an assessment using the factors derived from Bardal v. Globe and Mail, 1960 CanLII 294, 24 D.L.R. 140 (Ontario Superior Court) which include the character of employment, length of service of the employee, age of the employee at the time of dismissal and the availability of similar employment having regard to the experience, training and qualifications of the employee.
Mr. George argued through counsel that there is a presumption in the common law that individuals who can be classified as senior management or executives should be entitled to at least 12 months’ notice regardless of their length of service. However, the motions judge did not agree and set out that there was uncontested evidence that Mr. George was not actually a senior manager or executive despite his title. For instance, Mr. George did not have any supervising role in his department nor was he responsible for any oversight or strategic decision-making in his department.
Therefore, in applying the Bardal factors as set out above, the motion judge found that Mr. George’s age was a factor that “warrants particular attention.” The motion judge also noted that Mr. George worked for less than one year and, as such, the reasonable notice period was set at 2 months.
An employee cannot rely simply on their title in order to set out that they are an executive or senior manager. The court will look at the substance of what that employee does in order to determine whether the employee was a senior manager including their actual job description and list of duties and responsibilities.
Further, an employee should not assume that there is any sort of presumption of a set period of notice that will be applied by the courts without scrutiny. However, a caveat to the above statement is that the motion judge in this case did not set out in their decision that the presumption as argued by Mr. George’s counsel was non-existent but that Mr. George was not a senior manager or executive.
Finally, we think that there needs to be more case law in order to flush out for sure whether or not COVID-19 or coronavirus will make an impact on the length of notice employers owe to their employees. It is simply not clear in this decision whether or not this was an argument for an increase in length of notice because of economical downturn caused by COVID-19 put forth by counsel and contemplated by the motion judge. It was not also not specifically set out in the analysis of the Bardal factors. However, this case may serve to soothe some employers’ fears of the courts awarding longer notice periods due to COVID-19 because the motion judge did set out that the employee was having a harder time finding a job because of COVID-19. For now, at best it would appear that the pandemic has more bearing on the reasonableness of the employee’s efforts at finding a job after their dismissal rather than what the actual length of the termination notice should be.