How Does Age Impact Reasonable Notice Period Assessment?

With the demise of mandatory retirement many people are now working past age 65. What impact does age have on the assessment of the reasonable notice period? A recent decision of the Ontario Court of Appeal confirmed that "exceptional circumstances" must exist before more than 24 months is awarded, and that neither age nor a planned retirement date constitute exceptional circumstances.

In Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, the Ontario Court of Appeal overturned an award of 30 months notice to a 62 year old senior vice president with 37 years of service. The motion judge was of the opinion that the case warranted a minimum 36 month notice period based on the Bardal v Globe and Mail Ltd. factors, but awarded 30 months to ensure the plaintiff was fully compensated to just beyond his 65th birthday. The plaintiff had said he intended to work for the employer until at least age 65.

The Court of Appeal did not accept the judge's reasoning that the "change in society's attitude regarding retirement" merited a longer notice period. The Court confirmed that the reasonable notice period should only exceed 24 months where "exceptional circumstances" exist.

While there is no absolute upper limit or 'cap' on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months. In Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the court stated that reasons to extend a notice period might include inducement, evidence of a specialized or otherwise difficult employment market or bad faith conduct. Although it is sometimes argued that the older a person is the harder it will be for them to find new work, the impact of age in determining notice period must be considered on a case-by-case basis and "the individual circumstances and evidence regarding the impact of age in each case is more important than following any particular rule." - Sciancmerli v. Comtech, 2014 BCSC 2140.

Recent cases in BC confirm these principles. In Kerr v. Arpac Storage Systems Corp. [2018] B.C.J. No. 810, the plaintiff, who was 70 years old at the time of termination with 22 years service as the employer's...