But We've Only Just Met – No Short Notice For Short Service In Ontario

Most employers in Ontario are familiar with the "rule of thumb" when it comes to calculating notice periods for employees at common law — one month of notice per year of service. While this appears to translate into shorter notice periods for short service employees, Ontario employers do so at their own peril.

In the 1999 decision of Minott v O'Shanter Development Company Ltd., 42 OR (3d) 321 (ONCA), the Ontario Court of Appeal rejected the "rule of thumb" as being largely inapplicable to employees with very short service. This was reiterated in 2011, in Love v Acuity Investment Management Inc., 2011 ONCA 130 (Love), where the Court of Appeal again cautioned placing a disproportionate weight on length of service, particularly where it may underemphasize the nature of the employee's work or their age.

In the years following Love, the notice periods awarded for short service employees at common law has steadily risen. Today, the trend in Ontario is notice periods that far outstrip the rule of thumb when it comes to short service employees.

A Recent Snapshot

Ontario courts have been consistently awarding notice periods in the range of four to six months for employees in middle to upper management with under two years of service, even where there are no aggravating circumstances:

In Nemirovski v Socast Inc., 2017 CarswellOnt 14948, a product manager employed for 19 months was awarded a notice period of nine months following his termination. The Ontario Superior Court paid particular attention to the fact that the employer did not provide the employee with a reference letter, and it took him more than nine months to find alternate employment, albeit with a lesser salary. There was also a particularly onerous non-competition clause in the employment contract. A sales manager in Nogueira v Second Cup, 2017 CarswellOnt 16262 was awarded a notice period of four months following the termination of her employment after 8.5 months. In Van Wyngaarden v Thumper Massager Inc., 2017 CarswellOnt 9833, a 59 year-old electric designer was awarded a four-month notice period after a mere six months of employment. Key to this award was the employee's unsuccessful mitigation attempts and his age. In Raposo v CA Canada Company, 2018 CarswellOnt 12044, a senior business...