Currie v. Nylene Canada Inc. : Reasonable Notice Beyond 24 Months

It is generally understood in the world of employment law that 24 months marks the theoretical ceiling in computing reasonable notice of termination. Only very rarely will that ceiling be broken. According to the Ontario Court of Appeal in Dawe v. The Equitable Life Insurance Company of Canada, a reasonable notice period longer than 24 months is only justified where there are exceptional circumstances.

In Currie v. Nylene Canada Inc., exceptional circumstances were found to justify granting a period of notice greater than 24 months. But, was this the right decision? Or is the decision ripe for appeal?

Termination and Reasonable Notice

On December 12, 2018, Ms. Currie was terminated from her position with Nylene Canada Inc. at the age of 58 and after 39 years of employment. The parties agreed that her termination was on a without cause basis, therefore entitling her to pay in lieu of reasonable notice. However, the parties disagreed on the duration of reasonable notice. Ms. Currie proposed 26 months, which was 2 months over the typical ceiling of 24 months. Nylene, on the other hand, suggested that Ms. Currie was entitled to no more than 15 months.

To justify a notice period beyond the typical 24 month ceiling, Ms. Currie asked the trial judge to make a finding of exceptional circumstances. Nylene, for their part, took the position that no exceptional circumstances existed.

Exceptional Circumstances

After considering all the facts, the trial judge found that there were indeed exceptional circumstances justifying the imposition of a notice period beyond the typical ceiling of 24 months. In particular, the trial judge made the following findings of exceptional circumstances:

  1. Currie left high school to take this job. She has been very loyal, remaining with a single employer (Nylene and its successor employers) for 39 years. Ms. Currie dedicated her entire working life to this single job. As the trial judge put it: “She has known nothing else”;
  2. Currie was 58 years old at the time of her termination, thus nearing the end of her career;
  3. It will be very difficult for Ms. Currie to find a new employer as her entire working history has been spent with one employer in one single type of environment; and
  4. Ms Currie’s termination was equivalent to a forced retirement when you consider her age, limited education and limited skill set.

Having found that there were indeed exceptional circumstances in the case, the trial judge awarded Ms. Currie with 26 months’ salary as compensation in lieu of notice.

 Decision is Potentially Inconsistent with the Court of Appeal in “Dawe”

Although this decision is one to be celebrated by employees, it might be theoretically and legally unsound. This is because the trial judge, in finding that there were exceptional circumstances, placed great emphasis on Ms. Currie’s age and the incredible length of service. However, the Court of Appeal in Dawe would have said that these considerations were already “recognized” and “rewarded” by the general ceiling of 24 months’ notice and do not, therefore, justify extending notice beyond that ceiling. Given that the decision in Currie may be contrary to the Court of Appeal’s guidance, there is a chance we may see an appeal down the road.