In an earlier blog post, we discussed the potential for courts to increase the notice periods awarded to employees where they are able to demonstrate clear mitigation efforts notwithstanding the many difficulties arising from the COVID-19 pandemic. At least two Ontario decisions have confirmed this possibility: Kraft v. Firepower Financial Corp. and Pavlov v. The New Zealand and Australian Lamb Company Limited. A more recent decision now suggests that Ontario is not the only Province taking this approach to determining reasonable notice of termination periods.

Miller v. Luminultra Technologies Ltd.: The Facts

This is a decision of the New Brunswick Court of Queen’s Bench. It concerned the termination of employment without cause of Ms. Miller, a 56-year-old employee of the Defendant employer. She was initially employed in 2014 as a marketing officer but held the position of Strategic Marketing Manager at the time of her termination in 2020. Ms. Miller, therefore, worked for the Defendant employer for just under six years.

When Ms. Miller was fired, she was offered a total severance of six months, inclusive of salary and benefits.

Was Six Month’s Severance Sufficient?

At common law, an employer has an obligation to provide an employee with reasonable notice of termination or pay in lieu of that reasonable notice where the employee has been terminated without cause. The goal is to provide the dismissed employee with enough notice to secure alternative employment. There is, however, no formula for determining what amounts to “reasonable notice”.  It must instead be determined with reference to each particular case. Factors which are likely to make securing alternative employment more difficult will often point towards a greater notice period being awarded in order to compensate for that increased difficulty. This is why, for example, we see greater notice periods being awarded to older employees, as it is assumed they will have a more difficult time finding new employment than younger employees.

Notably, Ms. Miller was dismissed from her employment approximately two months into the COVID-19 pandemic. As we are all well aware, the COVID-19 pandemic has had a damaging impact on the labour market. Many businesses have struggled and as a result have been unwilling to hire. According to the New Brunswick Court, Ms. Miller made “extensive efforts” to find new employment with no success. The Court acknowledged:

“While there is no evidence in the Record of the specific impact of the pandemic on Ms. Miller or the job sector in which she was seeking employment, there can be little doubt that the pandemic and the shutdowns associated with it would have had some impact on Ms. Miller’s ability to find new employment.”

The Court had to decide whether or not to extend Ms. Miller’s reasonable notice period as a consequence of her COVID-related difficulties in searching for new employment. The Court wrote:

“I agree with the reasoning in Iriotakis that the pandemic is one of many factors to be considered when assessing reasonable notice. I also agree that termination at the point in the pandemic when the Plaintiff was terminated would tend to “tilt” the reasonable notice towards a longer range.”

Based on the above, and in considering Ms. Miller’s age and length of service, the Court determined the reasonable notice period in her case to be ten months. This is an extension of two months over the approximate average of eight months for individuals in Ms. Miller’s circumstances.