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Is “Character of Employment” Evolving as a Factor in Fixing Notice Periods? Part 2 of 2

Posted On: January, 21 2015

The Emerging “Egalitarian” Approach

In some recent decisions from outside Ontario, trial judges have again been questioning the emphasis that has often been placed on character of employment as a factor in fixing notice periods. Interestingly, the approach taken in these recent decisions has been more explicitly egalitarian than the approach that was rejected in Cronk.

For example, in Systad v. Ray-Mont Logistics Canada Inc., 2011 BCSC 1202, Burnyeat J., considered the case of 65 year-old non-management employee of a shipping company.  In fixing the notice period, he considered a number of authorities, including more recent cases that had followed the Ontario Court of Appeal’s decision in Cronk.  However, in the final analysis Burnyeat J. questioned the fairness of automatically giving more junior employees shorter notice periods:

[19]           There is no evidence to suggest that an employee with the responsibilities of Mr. Systad will have an easier time finding suitable alternate employment than an employee having more “senior” duties.  I am satisfied that there are very few situations where the “character of employment” will be of paramount relevancy in the consideration of the appropriate notice period to be ordered.  I adopt the statements that giving undue attention to the character of employment represents “antiquated social values” and is “antithetical to the law’s ultimate goal, namely egalitarian justice”.  Character of employment is merely another matter which I take into account along with the other factors set out in Bardal, supra.

The decision that Burnyeat J. most prominently relied upon was the 1999 decision of the New Brunswick Court of Appeal in Bramble v. Medis Health. In that case, the New Brunswick Court of Appeal held that placing undue emphasis on an employee’s rank in fixing notice periods represented “antiquated social values.” The New Brunswick court did not reject character of employment as a factor, but suggested that it had been excessively emphasized in the jurisprudence.

The Situation in Ontario

In Bramble, the New Brunswick Court of Appeal held as follows in deciding to award a lengthy notice period to a low-ranking employee:

…neither the Supreme Court nor this Court has had occasion to squarely address the question so that neither has, to this date, explicitly ruled that junior employees are, by the mere fact of the status of their employment in the employer’s hierarchy, entitled to less notice than senior employees.

What this meant was that there was no binding authority upon the New Brunswick courts compelling any particular application of the character of employment factor. A similar situation exists in British Columbia, insofar as the Court of Appeal in that province has not definitively considered the question of whether the character of employment ought to be a pre-eminent factor in fixing notice periods.

The current state of the law in Ontario is arguably different. The Court of Appeal’s decision in Cronk remains valid law. However, given that the decision in Cronk is now 16 years old, and given the recent willingness of courts in other provinces to deemphasize the decision in Cronk, it is quite possible that the Ontario Court of Appeal could revisit this issue and depart from the traditional emphasis that has been placed on character of employment.

 

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