Call Us Now

Blog

Ontario Court Awards 26 Months Notice to Long Service Employee

Posted On: January, 21 2015

In a recent decision, the Ontario Superior Court of Justice awarded 26 months of notice to a long service employee of Suzuki Canada named Syed Hussain.  Mr. Hussain had worked for Suzuki Canada in various positions for approximately 36 years.  At the time of his termination, he was almost 65 years old.  Due to his age, his years of service, his supervisory position, and the particular difficulty he had faced and would face in finding comparable alternative employment, the court found that 26 months of notice was appropriate.

This case is exceptional because courts rarely award notice beyond 24 months.  Twenty-four months of notice is viewed as the higher end of the range, barring exceptional circumstances.  In this case, the Court explained that while no individual factor in this case was exceptional, the combination of all of Mr. Hussain’s personal circumstances called for a longer reasonable notice award of 26 months.

In the course of its decision, the Court also provided some useful guidance on the principles of mitigation, particularly as they apply to long-service and/or employees nearing the end of their working years.

First, an employee’s efforts to find replacement employment should be reasonable, but they need not be perfect.  Second, the employer bears the onus of proving that the employee failed to take reasonable steps to mitigate his or her damages.

Third, when assessing the reasonableness of an employee’s job search efforts, the court does not expect an employee to begin his or her job search immediately after termination.  It is reasonable for the employee to be provided with a brief period of time in which to recover from the shock of losing his or her job.  According to the Court, an employee will be entitled to a reasonable period of time to get over the shock of losing her job, to organize her thoughts about obtaining new work, and to undertake the necessary research and preparation of her resume so that she is in a position to apply and compete for available positions.

In this case, the Court held that it was completely acceptable for Mr. Hussain to wait three weeks before beginning his job search, especially because of his age and because he had been terminated after so many years of service, and given the fact that he had been terminated without any reasonable notice, or even the minimum termination and severance pay required under the Employment Standards Act.

In its final award, the Court awarded 25.5 months of reasonable notice paid as a lump sum.  In its reasons, the Court explained that Mr. Hussain’s reasonable notice period of 26 months should be reduced by two weeks of pay to account for the fact that the Court hearing had occurred nine months after his termination, and there was a 1 percent possibility that he would secure comparable alternate employment within the 26 month period.

 

Contact Us

RECENT NEWS & EVENTS

5 STAR REVIEWS

  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by SB

    I just wanted to let you know how happy I am with the outcome and how very grateful I am for the guidance and support that you and your team provided.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Google user

    Patrick James is really a great lawyer who is smart and great to deal with. He's been our litigation counsel for over 5 years on several different matters. Patrick recently gave our company great strategic advice that resulted in a big commercial litigation win for our company. He's fierce, tenacious, and really cares about getting the best outcome for his clients.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Google user

    Patrick is a very good lawyer. He recently successfully defended a lawsuit against my company and has pursued several litigation claims for us in the past. All claims settled input favour. Mr. James is smart and quickly gives you great strategic advice. Patrick has been a real asset to our business.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Sandra L.

    Andrew Wray and Patrick James recently helped settle a difficult situation for me and my family. The results were exactly what we were hoping for. They are honest, strategic and will provide you with the best advice for you and your financial situation. I highly recommend them to everyone I know.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Mark C.

    Their team is highly focused and incredibly professional - from our experience it would be difficult not to believe that Pinto Wray James are one of Ontario's leading Firms in Labor and Employment law. The mindful client care and complete understanding of the case eased fears and the stress that comes with any legal dispute. Expect to find high level smartly crafted legal solutions at Pinto Wray James LLP - couldn't recommend more.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Sherry C.

    Patrick is knowledgeable, strategic, supportive, and patient. His guidance and advice helped me to maintain focus and to keep things in perspective. His experience and keen perception provides him with an edge that allows him to assess the situation, the people involved, and to offer a strategic resolution that works best for all involved. If you ever require legal advice and assistance, I highly recommend him and his team. They will be there 100% for you.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Christian V.

    Patrick is a fearless advocate for diverse clients. His strategic approach, and his empathy, are what set him apart as a litigator, and champion of the underdog.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by A Google User

    I have no hesitation recommending Andrew Wray of Pinto Wray James LLP. He provided me with legal advice regarding an employment law issue and his council was practical and honest. Andrew's approach is very much one of blending legal excellence with good common sense. An excellent lawyer!
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Larry S.

    Patrick listens to his clients and shows compassion, empathy and professionalism. He cares deeply that the individual that has been wrongfully terminated gets the best judgment available to him. I would not hesitate in recommending him to friends or family.
Submit