Severance Packages & Pay

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“Severance” at common law is tied to the amount of termination notice an employee should be given

What is Severance Pay?

In Ontario, the term “severance pay” could refer to two different things: Common law severance pay, or statutory severance pay.  Common law severance pay is payment in lieu of reasonable notice.  Statutory severance pay is one week’s pay for every year of service.  Common law entitlements to severance pay are usually greater than statutory entitlements. Stacey R. Ball – Employment Lawyer in Toronto can help you regarding your Severance pay issues.

How to calculate your common law severance pay

The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy.

The factors mentioned above will be weighed and examined in the particular circumstances of each case. That being said, the normal maximum range for common law reasonable notice is 24 months. There is no easy calculation to determine the amount of severance that an employee will receive at common law.

Employers will often present a terminated employee with a severance package and request that they sign the offer quickly. However, employees should carefully review a severance package offer ideally with legal counsel prior to signing. An experienced lawyer will be able to inform you of your entitlements under the law, and provide advice on how to maximize your severance pay. Most employees are offered much less severance than they are owed.

Who gets Which Kind of Severance Pay?

Statutory severance pay is available to employees who have worked for five (5) years or more with an employer who has a $2.5 million-dollar payroll.

Common law severance pay is available to any employee, as long as they were not terminated for just cause and as long as they were not subject to a valid termination clause that replaces their common law entitlements.

SEVERANCE PAY

EMPLOYMENT STANDARDS ACT

How To Maximize Your Severance Pay?

The severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, among others: length of service, age, reason for dismissal, the position the employee held within the company, compensation, whether the employee was actively recruited and the general economy. Employers will often present a terminated employee with a severance package and request that they sign the offer quickly. However, employees should carefully review a severance package offer, ideally with legal counsel, prior to signing. An experienced lawyer will be able to inform you of your entitlements under the law, and provide advice on how to maximize your severance pay. Most employees are offered much less severance than they are owed.

Severance exists in provincial legislation in Ontario, in the form of the Employment Standards Act, but common law remedies tend to be much greater for most employees in Ontario. To obtain a common law remedy it is normally best to seek legal counsel. There is no easy calculation to determine the amount of severance that an employee will receive at common law. The factors mentioned above will be weighed and examined in the particular circumstances of each case. That being said, the normal maximum range for common law reasonable notice is between 18 and 24 months. Further, courts in Ontario have found damages for breach of the implied obligation of good faith and fair dealing over and above the 24-month base notice period.

Severance Pay for Terminated Executives

If you have been an employee for a company in a senior role, you may be entitled to much more substantial compensation on a without-cause termination than what your employer is currently offering you.  It is important to note that while employers include deadlines in their severance and termination offers as a means to pressure terminated employees to sign release documents, these deadlines are not enforceable.  Employers are required to provide a reasonable amount of time for employees to consider their options. Prior to signing any agreement, make sure you speak to an employment lawyer to ensure your rights are protected.

Determining Notice Period for Executives and Entitlement to Bonus and Benefits

While there is a general rule of thumb under the common law that reasonable notice for terminated employees is one month of notice for every year of employment, reasonable notice becomes a more fact intensive analysis when dealing with terminated executives, especially if they had short service within a company.  The Ontario Court of Appeal decision of Love v. Acuity Investment Management Inc. reveals some important considerations.

The Plaintiff was a senior VP and shareholder with the Defendant.  The shareholder agreement indicated that if the Plaintiff was to be “dismissed without cause”, the Defendant would repurchase the Plaintiff’s shares at the value and date in which the Plaintiff “ceased to be an employee”.  The Plaintiff was dismissed without cause after only 2.53 years of service and the Defendant offered a three-month termination package in line with the “rule of thumb”.  Litigation proceeded.

The trial judge determined that the Plaintiff was entitled to five months’ notice and that he was able to hold his shares until the end of the notice period.

The Court of Appeal determined that nine months’ notice was more appropriate.  The court stated the trial judge placed too much importance on the Plaintiff’s short employment and not enough emphasis on the Plaintiffs high income, equity ownership, high-level role within the company and the difficulties in finding a position of a substantially comparable nature.  The court also determined that the Plaintiff “ceased to be an employee” on the termination date.

While employees are entitled to damages equal to the total benefits they would have been given had they worked the notice period, this principal does not apply in the context of a clear contract stating that the employee is not entitled to the benefit over the notice period. Ultimately, this case illustrates that the contractual language was clear enough so as to oust the Plaintiffs entitlement to bonus during the notice period.  Other case law in Ontario have provided for the same result of denying benefits over the notice period, however with even more clear and unequivocal language. An good example of limiting language can be seen in the 2004 decision of Kieran v. Ingram Micro Inc., where the employee’s right to stock options ended when the employee “ceases to perform services…without regard to whether [he] continues thereafter to receive any compensatory payments or is paid salary thereby in lieu of notice of termination.” Having such language in both hiring contracts and benefit agreements helps to clarify entitlement to benefits and when they end.

Bonus Entitlements in Severance Pay

Case law in the province has been inconsistent on whether or not employees are entitled to bonuses during the notice period. Generally, employees are entitled to the accrued bonus pay which would have been earned if they remained employed during the notice period.  There is an exception however where as part of the employers bonus policy, terminated employees must be “actively employed” during the time that bonus is paid. Case law in Ontario discusses the wording of the “active employment” clauses in bonus policies.

If you are an employee in an executive position, call the office of Stacey Ball to discuss your severance offer.

​Terminated Employee

It should be noted that the term “severance package” is typically used to describe the total payout that a terminated employee will receive. However, “severance pay” is actually a defined term in the Employment Standards Act. It compensates employees for losses (like loss of seniority) that happen when a long-term employee is terminated. In order to qualify for severance pay an employer must have worked for the employer for at least five years and the employer must either have a payroll of $2.5 million or have severed 50+ employees in a six-month period as a result of a business closure.

Relevant cases dealing with severance packages and pay include Wallace v. United Grain Growers Ltd. (1997), 152 D.L.R. (4th) 1, (1997) 3 S.C.R. 701; Suttie v. Metro Transit Operating Co., (1983), 1 C.C.E.L. 123; and Kreager v. Davidson (1992), 44 C.C.E.L. 261. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice and assistance in an employment matter, please contact the experts at Ball Professional Corporation.

TOTAL PAYOUT

TERMINATION CLAUSES

Impact of Termination Clauses

A termination clause that purports to restrict an employee’s common law entitlements regarding severance pay (i.e., payment in lieu of reasonable notice), must indicate what the common law entitlements are being replaced with.  It is through the termination clause that some employers limit employees to the statutory entitlements regarding severance.  It is important to note that the statutory entitlements are the absolute minimum that an employer is required to provide to employees.  If the employer attempts to impose a restriction that provides even less than what the employee would be statutorily entitled to, then the termination clause will become void and the employee may be entitled to the common law and payment in lieu of reasonable notice, which is often much greater than the statutory entitlements.

However, the employer does not have to replace the common law entitlements with the statutory entitlements.  They may instead choose to replace it with some formula for determining severance pay that falls somewhere between the statutory entitlements and common law.  If the employer truly wished to, they could even replace it with a formula that would exceed the common law entitlements.

Calculating Severance Pay in Ontario

Being terminated from work is a stressful experience for anybody. Emotions run high as you have to figure out your next steps, and money is obviously a primary concern. Your rights to severance pay and termination pay will depend on the circumstances of your termination.

The first thing you should do, before signing anything, is contact a lawyer to review the severance package that your employer has offered you. An experienced employment lawyer can tell you if you are receiving all of the entitlements owed to you under the law, and give advice on how to maximize your severance package. Sadly, many employees walk away with less severance than they are owed.

Please note that “severance package” and “severance pay” refer to different things. The term severance package is generally used to describe the total payout that a terminated employee will receive. Severance pay, on the other hand, is a term in the Employment Standards Act. It compensates employees for losses (like loss of seniority) that happen when a long-term employee is fired. In order to qualify for severance pay an employer must have worked for the employer for at least five years and the employer must either have a payroll of $2.5 million or have severed 50+ employees in a six-month period as a result of a business closure.

There are two main scenarios in which Ontarians are terminated; with cause and without cause.

Terminated With Cause

It is a high bar to terminate someone with cause in Canada. Generally, there must be some serious misconduct that harms the employment relationship, such as theft, violence, fraud rising to the level of gross misconduct. The reason for the high bar is that in the event of willful misconduct, an employee will not receive any termination or severance pay. If you are an employee who has been fired for cause, you should absolutely reach out to a lawyer to review the circumstances of your dismissal.  You may have a case for wrongful dismissal.

Terminated Without Cause

In Ontario, you can be terminated without cause, so long as your employer provides the appropriate amount of “notice” or “pay in lieu of notice”. The Employment Standards Act sets out minimum entitlements that a terminated employee receives. This is based on the length of service. However, employers are only allowed to provide this minimum amount if they included an enforceable termination provision in your employment contract. This is actually quite tricky for employers. The provision must be explicit, unequivocal and a valid term of the employment agreement. Even technical violations of the Employment Standards Act may render the provision void.

If that happens, or if there is no termination provision at all, the employee is actually entitled to common law reasonable notice. This is usually a much higher amount than the minimums set out in the Employment Standards Act.

When the court determines common law reasonable notice, they will consider such factors as the length of employment, the employee’s position, the reason for dismissal, the employee’s compensation and whether the employer acted fairly and in good faith. These are several examples. The maximum notice period available is typically 24 months, though there are always exceptions for egregious behavior.

Please note that all of these factors would be weighed and the particular circumstances of each case need to be examined to determine the appropriate amount of reasonable notice.

Contact the legal professionals at Ball Professional Corporation for assistance to make sure you receive any entitlements owed to you upon termination.

Common Law: What does Payment in Lieu of Reasonable Notice mean?

If the common law applies, there is no easy and exact formula that will tell employees what their severance entitlement is.  First, the “reasonable notice” that an employee is entitled to needs to be determined.  “Reasonable notice” attempts to determine approximately how long it would take an employee to become re-employed in a comparable job.  The amount of time that will be considered “reasonable notice” will depend on an employee’s age, salary, position, years of service, and more.  Typically, reasonable notice very rarely exceeds thirty (30) months and has a minimum of around six (6) to twelve (12) weeks – even for employees who only worked a single hour.

Common law severance pay is payment in lieu of the employee working for the reasonable notice time period.  This means that it includes all the compensation the employee would have received had they worked through the entire reasonable notice period.

In Summary

Severance under the common law is the default unless: 1. An employee is terminated for just cause; or 2. There is a valid termination clause that imposes a different severance formula (such as statutory severance, or another formula somewhere in between the two).

Stacey Reginald Ball is an experienced Toronto employment lawyer with the Ball Professional Corporation.  Our office handles various employment law matters, including wrongful dismissal.  If you have questions regarding severance pay, please consult a lawyer for advice.

COMMON LAW

TERMINATION VS SEVERANCE PAY

TERMINATION PAY

Many people may think that termination pay and severance pay are the same thing. Legally, however, they are two different things and not all employees are entitled to both termination pay and severance pay. While most employees will be entitled to termination pay, only some employees will be entitled to severance pay.

What is Termination Pay?

Termination pay is what is provided to an employee in place of giving the employee working notice. When an employee is terminated without cause, they are entitled to either a working notice period, or for payment that would reflect the amount of money they would have earned and benefits they would have had access to if they had been given working notice.

How much termination pay am I entitled to under the ESA?

If you have been continuously employed for at least three months, you are entitled to at least one week’s working notice or pay in lieu. The amount of required notice for termination or pay in lieu depends on the duration of your employment.

You are entitled to one week’s pay for each year’s service with the company. The maximum you can get is 8 weeks’ pay, if you work for 8 or more years.

The amount of notice an employee is entitled to is determined by their employment contract, but at the very minimum, they will be entitled to the minimum standards set out in the Employment Standards Act (“ESA”).

What is Severance Pay?

Unlike termination pay, employees will only be entitled to severance pay in certain circumstances. To be entitled to severance pay, an employee must have worked for the employer for a minimum of five (5) years and one of the two following statements must be applicable to the situation:

a) The severance occurred because of permanent discontinuance or all or part of the employer’s business at an establishment and the employee is one of fifty (50) or more employees who have their employment relationship severed within a six (6) month period as a result;

b) The employer has a total annual payroll in Ontario of $2.5 million or more.

However, there are many situations in which an employer is not obligated to pay severance pay, even if an employee has worked five (5) or more years and the employer is a company whose total annual payroll is $2.5 million or more.

Some situations in which the employer is not obligated to pay severance pay include, but are not limited to:

  • When the employee is being terminated for wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and was not condoned by the employer
  • When the employee is employed in construction
  • When the employee has refused an offer of reasonable alternative work with the employer
  • When the termination of employment is due to the discontinuance of all or part of the employer’s business that the employer can show was caused by the economic consequences of a strike
  • When an employee retires upon having their employment severed and receives an unreduced pension benefit from the employer that reflects any service credits which the employee, had the employment not been severed, would have been expected to have earned in the normal course of events for the purposes of the pension plan.

More exemptions can be found under section 9(1) of the Ontario Regulation 288/01.

Stacey Reginald Ball is an experienced employment lawyer with Ball Professional Corporation. Our office is located in Toronto, Ontario, and handles various employment law matters, including wrongful dismissal. If you have questions regarding severance and termination pay, please consult a lawyer for advice.

Termination and severance pay in Ontario: are they the same things?

Many people may think that termination pay and severance pay are the same thing. However, they are two different things legally and not all employees are entitled to both termination pay and severance pay. While most employees will be entitled to termination pay pursuant to the Employment Standards Act (ESA), only some employees will be entitled to severance pay under ESA.

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I was extremely pleased with the service provided by Mr. Stacey Ball and assistants. When I first approached him with my situation-a severance package well below merit, he was very direct with what is a reasonable severance and what he wanted to negotiate for me. Within a very short time he was able to get me 70% more above the initial severance offer and an additional 10% for pension and benefits. The timeline worked out beautifully as I did not fall short of funds while waiting for the settlement. I was pleasantly surprised and grateful of the outcome. In addition, his fees were very reasonable and were hardly felt. Thanks again Stacey.:)
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18:17 16 Dec 19
Stacy helped me with my wrongful dismissal case. He is very knowledgeable and kind. With his expertise, he could resolved and provided me a satisfactory settlement solution with my ex-employer. His fees are reasonable and office staff are very supportive . I am very happy with his service.
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01:55 09 Mar 20
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Sergei R
16:33 09 Oct 20
My 2011 experience with Stacey R. Ball was very positive. His fees are reasonable and value I received for the money was outstanding. Luckily, after his advice my situation was resolved almost amicably. You will not believe how reasonable some people can become after they start suspecting you have a good lawyer. An ounce of prevention is worth a pound of cure. If you suspect you might need a lawyer in the future because of some developing situation at work, I highly recommend you wait no more and talk to Stacey.Update in 2020:I cannot write more reviews, it looks like one review per account, so I am editing the existing review. Another unrelated incident in 2020. Another consultation and advice what to do next in order to steer clear of unpleasant developments. His very reasonable consultation fee is the best investment I ever made in my peace of mind. He was busy so he could not meet me on the day I wanted, but he met me two days later, which was perfectly fine. After talking to him it became much more clear to me what to do and what to avoid doing. Quotes Supreme Court cases as references when he explains things as to what to do and why, looks like he knows them by heart. There is a good reason why he is busy. He is a very effective lawyer. Very highly recommend.
Araz Khalkhali
Araz Khalkhali
21:50 20 Oct 20
Thank you to Stacey Ball and his staff for my making my experience a great one. Stacey was extremely honest, professional, insightful and responsive. His vast experience was evident as was his in-depth knowledge of employment law. He took great care with my case, was transparent and made sure I was informed every step of the way. I highly recommend Stacey and his outstanding team and I wouldn't hesitate to reach out to them again.
Araz K
Araz K
01:33 21 Oct 20
Thank you to Stacey Ball and his staff for making my experience a great one. Stacey was extremely honest, professional, insightful and responsive. His vast experience was evident as was his in-depth knowledge of employment law. He took great care with my case, was transparent and made sure I was informed every step of the way. I highly recommend Stacey and his outstanding team and I wouldn't hesitate to reach out to them again.
Terry Michaelson
Terry Michaelson
16:39 19 Feb 21
Stacey knows his business and how to get things done. He gives good counsel and executes effective strategy. I was very pleased with the results he achieved and recommend his practice highly.
Ryan Gomes
Ryan Gomes
23:08 01 Mar 21
I hired Stacey about 10 years ago now to represent me on a constructive dismissal case. After my first meeting with him, I felt very confident he would do the long haul and stick through the tough times ahead. It was a long stressful two-year battle but we were successful in winning my case. Unfortunately I lost my job in April at the start of the pandemic. My employer terminated me without cause so the first person that popped into mind was Stacey. Again he took on my case and after just a couple of months, negotiated a strong settlement for me. I would recommend Stacey to my friends, family and anyone who is not familiar with employment law or feels like they are being taken advantage of by their employer.
Angel Morgan
Angel Morgan
22:50 17 Mar 21
Mr. Ball and his team were amazing. They were efficient, knowledgeable and got our settlement done in a more than timely fashion.I would highly recommend him to anyone and have done so a few times over.
Sajjad Hyder
Sajjad Hyder
23:10 26 Mar 21
Stacey helped me with my case and I have to say I am very pleased with the outcome. Stacey and his team are always available to answer my questions. My case was resolved in a short time. Stacey is a good employment lawyer one can trust and his legal fee was very fair and reasonable. I would highly recommend Stacey to whoever needs a legal service.
Cordie Kemmer
Cordie Kemmer
07:44 07 Aug 21
Helped me with a workplace discrimination case, got laid off without a just cause for dismissal. Ended up winning the case and getting a severance package, couldn’t be happier.
Opal Satterfield
Opal Satterfield
09:58 09 Aug 21
For small business law, he’s the best in the city. Knows the ins and outs of the law and helped me save my business.
Katelynn Schroeder
Katelynn Schroeder
10:01 13 Aug 21
Consulted him a few times and would recommend him for any employment matter.
Arianna Nader
Arianna Nader
10:11 15 Aug 21
Had a really positive experience with this lawyer. He was straight forward and knew exactly what he was doing.
Tyrel Osinski
Tyrel Osinski
04:26 17 Aug 21
This law firm was absolutely great with reviewing my severance agreement. Recommend!!!
Dawson Bailey
Dawson Bailey
16:09 20 Aug 21
Had him look over my employment contracts before I finalized them, great choice. Ended up switching a few key things so now the business is more protected.
Rudy Hartmann
Rudy Hartmann
07:14 22 Aug 21
Had a big job opportunity and had Stacey look over the contract, caught a few things in the contract that the employer ended up changing once I brought it up to them. Always a good idea to double check with someone who knows this stuff and I’m glad a did.
Bennie Weber
Bennie Weber
20:02 11 Aug 21
Mr. Stacey Ball was very professional & knowledgeable with my workplace discrimination case.
Barnadet Eskander
Barnadet Eskander
14:35 17 Nov 21
The best lawyer in all of Canada and his associate, Shane is amazing! They make your life so easy.
Jerry Lam
Jerry Lam
17:42 16 Jan 22
We would highly recommend Stacey to anyone who needs employment legal services. This was the first time we hired a lawyer to represent us for wrongful dismissal. Our case was a unique one which required creativity and an in-depth knowledge of employment law. It was evident to us in our first meeting that Stacey would be able to fight for our case because he listened to our situation and provided several strategies that we could work toward to achieve the result we want. The process was clear in the first day and the fees structure was discussed on the same day. Following his guidance, we were able to negotiate a strong settlement. Even though the process was stressful, he made it much easier for us and we shared a lot of laughs together. Thank you for standing up for us!
Marjolaine Cronin
Marjolaine Cronin
16:51 30 Jan 22
I'd never have thought that I would be treated unfairly at work and, as a result, wrongfully terminated. Well, I'm not the kind of person who is okay with being humiliated, so I contracted this employment lawyer as I heard he was one of the best in Canada. It definitely paid back. Thank you once again!!
iourii pilipenko
iourii pilipenko
20:20 10 Feb 22
I would highly recommend Stacey. He is the one that can stay for youAttentive.very knowledgeable, accurate.,reasonable,responsible. He gets in your shoes!!!
Candace Nitzsche
Candace Nitzsche
05:04 20 Mar 22
Working with Stacey Ball was especially delightful cuz he is quite transparent about the process, risks and possible options. It felt like I was in the hands of the professional right from the start.
Joyce Sanford
Joyce Sanford
21:31 04 Apr 22
Stacey R. Ball is the best lawyer. Now, I can understand why this lawyer has such a high rating. Very good job on my case.
My Heard
My Heard
10:24 08 May 22
Been a few years since I had to go to this firm about workplace harassment.. Now I can finally talk about it and express my gratitude, the team at mr. ball's practice is incredible, they will do their best for you
Kevin Long
Kevin Long
09:06 16 May 22
Highly appreciate your advice and help with race discrimination at work! In my particular situation, Stacey Ball and his team completed a thorough investigation to build a convincing case. I got an amazing representation. To sum it up, excellent job, this is the right employment lawyer!
Belle Miller
Belle Miller
08:25 28 Mar 22
Best lawyer for any employment issues, speaking from my own experience as well as my friend's
Monica Kohli
Monica Kohli
18:43 30 May 22
I just wanted to say a quick thank you for all your guidance and support and patience with me through a rather difficult time. Thanks to you guys it became easier to deal with. You made the process easy to understand and were on top of the game the whole time. Stacey, you have an awesome team and I absolutely loved your straightforward style.Thank you once again!
Louie Hays
Louie Hays
12:25 02 Jun 22
I recently had a consultation with this lawyer and got useful legal advice. So grateful for your help! You're my first call if things escalate.
Louie Hays
Louie Hays
09:27 24 Jul 22
I recently had a consultation with this lawyer and got useful legal advice. So grateful for your help! You're my first call if things escalate. Recomended for everyone.
Bertha Watts
Bertha Watts
11:38 06 Aug 22
Mr. Stacey Ball expertly helped my family member through her wage dispute. I was the one who recommended him since he helps our company with work contracts.
Angela Turner
Angela Turner
07:55 20 Oct 22
Sometimes friendships can go wrong & have a bad effect on your career.. exactly what happened to me when I was unfairly terminated. When I realized that just moving on wouldn't do it for me, I found this dedicated professional - Stacey Ball. With the employment lawyer on my side I was treated fairly & won the case. I can't express how thankful I am for the settlement & bringing back my confidence!
Wilhelmine Muller
Wilhelmine Muller
17:03 29 Nov 22
Friendships can occasionally go wrong and have a bad impact on your work, which is what happened to me when I was dismissed unfairly.I found this committed professional named Stacey Ball after I realized that simply moving on wouldn't work for me.Thanks to the employment lawyer on my side, I received fair treatment and won the case.I can't express how grateful I am that the settlement allowed me to regain my confidence.
Hooshmand Moniri
Hooshmand Moniri
21:12 01 Jan 23
It was a pleasure dealing with such a thorough and knowledgeable legal professional like Stacey.I would highly recommend Stacey for any employment legal issues.A big thank you to Stacey and his team.
Albert McCormick
Albert McCormick
19:53 18 Mar 23
Stacey R. Ball was the most knowledgeable lawyer I could have wished for when I was terminated. I am deeply grateful for his assistance, it was invaluable in helping me navigate this difficult circumstance.
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