An art, not a science: Divisional Court upholds 18-month notice award to long-term clerical employee

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A recent decision of Ontario’s Divisional Court illustrates the uncertainties inherent in the calculation of the reasonable notice period in wrongful dismissal actions. The decision, Cohen v. Edwards (June 22, 2000) is also of interest in that it concerns the special considerations that apply when the plaintiff is a long-service, low-level employee in the twilight of his or her working life. These considerations include the fact that such plaintiffs are likely to attract the court’s sympathy. This sympathy, plus the deference shown to trial judgments by the appeal court, may translate into awards at the upper end of the “reasonable” range of damages.

Hilda Cohen was 64 years of age when she was dismissed. A clerk with no specialized skills and only a high school education, she had worked for 20 years for her employer, a psychiatrist and family friend. She worked two days a week. At trial, Cohen was awarded 18 months’ notice. The employer appealed to the Divisional Court, where the majority upheld the trial judge’s award.

IMPENDING RETIREMENT NOT AN ISSUE

Before the Divisional Court, the employer argued that the trial judge had erred in not capping Cohen’s damages at the point where she would have reached age 65, on the theory that she would have retired at that time. Further, the employer contended, Cohen never did go back to work, thereby showing that she would have retired in any event. The Court disagreed:

    “It may well be the case that most people retire at age 65. However, not all people do, and there was no evidence at trial as to what Mrs. Cohen’s intentions were, nor was there any evidence of whether the employer had a practice or policy of retiring employees at 65. The fact that Mrs. Cohen never went back into the workforce after her dismissal is not necessarily an indication that she would have retired at 65 if she had not been fired.”

THE BARDAL FACTORS, THE “ART” OF NOTICE PERIOD CALCULATION, AND THE DEFERENCE OF APPEAL COURTS

Having determined that there was no automatic cutoff at age 65, the Court went on to assess Cohen’s damages based on the four factors set out in the 1960 case, Bardal v. Globe & Mail. Three of these factors, her length of service, her advanced age, and the difficulty she would experience in finding new employment, worked in favour of lengthening the notice period. On the other hand, the fourth factor, the nature of her employment, consisting in low-level clerical duties, tended to shorten the period.

Based on these factors, the Court determined that notice of between 12 and 18 months was in the reasonable range. The trial judge had awarded 18 months. In determining its role in reviewing the trial judge’s award, the Court quoted at length from the Ontario Court of Appeal’s decision in Minott v. O’Shanter Development Co. (see “Employee “misconduct” under U.I. Act not just cause for dismissal, Appeal Court rules” on our Publications page).

    “Determining the period of reasonable notice is an art not a science. In each case, trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and, ordinarily, there is no one “right” figure for reasonable notice. Instead, most cases yield a range of reasonableness. Therefore, a trial judge’s determination of the period of reasonable notice is entitled to deference from an appellate court. An appeal court is not justified in interfering unless the figure arrived at by the trial judge is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. … If the trial judge erred in principle, an appellate court may substitute its own figure. But it should do so sparingly if the trial judge’s award is within an acceptable range despite the error in principle.”

Citing the deferential approach of Minott, the majority of the Court held that the trial judge’s award was neither outside the acceptable range, nor was it based on an error in principle. Accordingly, the Court upheld the award of 18 months’ damages in lieu of notice.

As if to illustrate the extent to which even judges can disagree about what constitutes reasonable notice, the dissenting judge held that six months notice was the more appropriate figure. In arriving at this figure, the dissent noted

  • the low skill level of the plaintiff,
  • the fact that the employer was in private practice and was a family friend of Cohen,
  • Cohen’s age and imminent retirement, and
  • Cohen’s “almost total lack of intent to mitigate her damages by seeking further employment”.

In Our View

Commentators have pointed out that the three notice periods offered by the judges involved in hearing this case, those of six, 12, and 18 months, highlights the uncertainty surrounding the determination of reasonable notice. This uncertainty is clearly compounded where, in a case such as this, the court will be torn between the length of the employee’s service and his or her difficulty in securing new employment on the one hand, and the low rank of the employee’s job position on the other.

For further information, please contact Jennifer Birrell at (613) 563-7660, Extension 261.