{"id":2191,"date":"2021-03-02T01:02:30","date_gmt":"2021-03-02T06:02:30","guid":{"rendered":"https:\/\/www.zeilikmanlaw.com\/?post_type=case-summaries&p=2191"},"modified":"2022-06-27T11:23:37","modified_gmt":"2022-06-27T15:23:37","slug":"covid-19-may-lengthen-notice-while-cerb-will-not-reduce-entitlement","status":"publish","type":"post","link":"https:\/\/www.zeilikmanlaw.com\/covid-19-may-lengthen-notice-while-cerb-will-not-reduce-entitlement\/","title":{"rendered":"COVID-19 May Lengthen Notice While CERB Will Not Reduce Entitlement"},"content":{"rendered":"

The Ontario Superior Court in the case of\u00a0Iriotakis v. Peninsula Employment Services Limited<\/em>, 2021 ONSC 998, is another development with respect to what the impact of COVID-19 will be on establishing the amount of reasonable notice an employee can expect when terminated by their employer.<\/p>\n

The plaintiff employee, Peter Iriotakis (\u201cMr. Iriotakis\u201d) brought a motion for summary judgment to determine his notice entitlement in a wrongful dismissal case.\u00a0 \u00a0Mr. Iriotakis was terminated on a without cause basis in March 2020.\u00a0 He was 56 years old and was employed by Peninsula Employment Services Limited (\u201cPeninsula\u201d) for about 28 months.\u00a0 His title was that of a \u201cBusiness Development Manager\u201d and his position was that of a salesperson where he had a base salary and earned additional commission income.\u00a0 While Mr. Iriotakis did not have a managerial position at Peninsula, he had significant responsibilities for developing customer relationships for the company.\u00a0 Mr. Iriotakis was able to mitigate his damages by finding alternative employment in October 2020.<\/p>\n

Mr. Iriotakis argued that he should receive at least 6 months of reasonable notice.\u00a0 Peninsula argued that Mr. Iriotakis should receive no more than 2 or 3 months of reasonable notice.<\/p>\n

The above details serve us to give context to the case.\u00a0 However, they are rather banal.\u00a0 \u00a0The interest of this case really sits with how the court looked at two things.\u00a0 The first is the impact of the COVID-19 pandemic on establishing Mr. Iriotakis\u2019 entitlement to reasonable notice.\u00a0 The second is impact of the receipt of certain government benefits that many Canadians took (and are still taking) in order to counteract some of the financial difficulties of the COVID-19 pandemic.<\/p>\n

The court set out that there is \u201clittle doubt\u201d that the COVID-19 pandemic has had \u201csome influence\u201d on the Canadian job market and therefore on Mr. Iriotakis\u2019 job search to find alternative employment. However, the court went on to set out that this influence is imprecise, highly speculative and uncertain both to the degree and duration at the time of Mr. Iriotakis\u2019 termination by Peninsula.\u00a0 Regardless, the court ultimately in paragraph 22 of its decision agreed that the uncertainties in the job market at the time of Mr. Iriotakis\u2019 termination \u201ctilt\u201d the period of reasonable notice away from what a rather short length of service might indicate.\u00a0 The court called for a \u201cbalanced approach.\u201d As such, in paragraph 23 of the decision, the court set out that Mr. Iriotakis should receive 3 months notice in order to balance the other factors (age, length of service, etc.) with the \u201cconsideration of his prospects\u201d of finding alternative employment.<\/p>\n

The court also determined that the Canadian Emergency Response Benefit (\u201cCERB\u201d) should not reduce Mr. Iriotakis\u2019 entitlements to damages from Peninsula because it would not be equitable to do so.\u00a0 However, the court acknowledged in paragraph 21 of the decision that CERB is not the same as the receipt of Employment Insurance as the employee has not \u201cearned\u201d the CERB benefit by paying into it as a taxpayer.<\/p>\n

Our Thoughts<\/strong><\/p>\n

This case sheds a little light on how court in Ontario will look at the impact of the COVID-19 pandemic on the length of notice entitlements that employees can expect.\u00a0 We know now that there may be some impact given the court\u2019s wording of taking a \u201cbalanced approached.\u201d\u00a0 However, without flushing out how that \u201cbalanced approach\u201d should be applied by courts in future cases that wording is rather vague.\u00a0 For instance, while the court acknowledged a balanced approach causing the COVID-19 pandemic to \u201ctilt\u201d reasonable notice away from a \u201cfairly short\u201d notice period, the court still decided that Mr. Iriotakis should receive only 3 months of notice.\u00a0 \u00a0The amount of notice is well below the \u201cat least\u201d 6 months that Mr. Iriotakis was asking for and right in line with the \u201c2 or 3\u201d months that Peninsula argued that Mr. Iriotakis was owed.<\/p>\n

This case may put the mind of employers at ease somewhat.\u00a0 While the court here acknowledged some sort of impact due to COVID-19, that impact was arguably minimal.\u00a0 Perhaps in may be the case that the impact of the pandemic may only push the amount of notice up a little to the higher range of what an employee would have received pre-pandemic.\u00a0 However, it would not cause the notice period to increase beyond that.<\/p>\n

Finally, we are not sure that we are in agreement with how the court looked at CERB.\u00a0 The court set out that it would not be \u201cequitable\u201d do reduce the Mr. Iriotakis\u2019 termination pay by CERB. Under normal circumstances, the principle is straightforward: an employer is not allowed to reduce the severance owing to the employee by the EI payments an employee has received during the notice period (the repayment obligation arises towards the government). Following this decision, it seems that an employer may be able to argue that CERB benefits may be used to reduce damages arising out of a wrongful dismissal payment when it would be \u201cequitable\u201d to do so. This means, of course, that it is unclear under what circumstances a reduction in wrongful termination damages vis-\u00e0-vis the employer would actually be appropriate.<\/p>\n","protected":false},"excerpt":{"rendered":"

The Ontario Superior Court in the case of\u00a0Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, is another development with respect to what the impact of COVID-19 will be on establishing the amount of reasonable notice an employee can expect when terminated by their employer. The plaintiff employee, Peter Iriotakis (\u201cMr. Iriotakis\u201d) brought a motion […]<\/p>\n","protected":false},"author":6,"featured_media":5196,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39,35],"tags":[],"jetpack_sharing_enabled":true,"jetpack_featured_media_url":"https:\/\/www.zeilikmanlaw.com\/wp-content\/uploads\/2022\/06\/Case-Summary.jpg","_links":{"self":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts\/2191"}],"collection":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/comments?post=2191"}],"version-history":[{"count":1,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts\/2191\/revisions"}],"predecessor-version":[{"id":5057,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/posts\/2191\/revisions\/5057"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/media\/5196"}],"wp:attachment":[{"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/media?parent=2191"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/categories?post=2191"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.zeilikmanlaw.com\/wp-json\/wp\/v2\/tags?post=2191"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}