In George v. Laurentian Bank Securities Inc., 2020 ONSC 5415, one of the first decisions from Ontario’s Superior Court since the COVID-19 pandemic began, the court focused on an employee’s responsibilities rather than his title alone in characterizing his position for purposes of assessing the common law reasonable notice to which he was entitled. In determining the amount of reasonable notice owed, the court referred to the economic realities of the COVID-19 pandemic in the province, but did not consider any difficulties the pandemic might have caused the employee in his efforts to secure another position.
The bank hired the employee in November 2018 on a contract of indefinite hire as “Vice President, Equity Trading.” The employee was paid $100,000 per annum, plus benefits, and was entitled to participate in an equity bonus pool. Five months later, the bank dismissed him without cause. On termination, the bank paid three weeks’ pay in lieu of notice, plus 2.5 weeks of benefit continuation. The employee made a motion for summary judgment claiming damages for wrongful dismissal.
In assessing common law reasonable notice, the court relied on the following factors set out in Bardal v. Globe and Mail, 24 D.L.R. 140 (ON SC):
- Character of the employment;
- Length of service;
- Age; and
- Availability of similar employment taking into consideration the experience, training and qualifications of the employee.
In rendering its decision 15 months after the employment termination, the court found that although the employee remained unemployed, he had made reasonable efforts to mitigate his damages. The court also noted, “…at the time of the hearing of this motion, Ontario continued to be coping with the economic realities of COVID-19.”1 There is no mention in the judgment whether either side made any legal argument with respect to the impact, if any, of COVID-19 on the assessment of reasonable notice.
The employee urged the court to find that a presumption at common law entitles senior management or executives who are wrongfully dismissed to a minimum of 12 months’ notice irrespective of the length of service. The court decided it was not required to determine whether this presumption exists because, for the following reasons, it decided the employee was neither a senior manager nor an executive within the meaning of the case law:
- He did not supervise coworkers in his department;
- He did not have responsibility for overseeing his department or making strategic decisions for his department;
- The same title was shared by all employees in his division to give them clout when dealing with the bank’s institutional clients, “not to denote senior management or executive positions within the bank”2;
- He was not part of the bank’s Executive Team, from which he was three levels removed. He reported to a Director within the department; and
- His “primary duties were to develop business, establish and manage relationships with existing and new institutional clients, and execute equity transactions and trading strategies to generate trade flow and deepen the Laurentian Bank’s reach in Canada.”3
The court stated:
Mr. George placed much stock in the fact that his title, Vice President Equity Trading, was sufficient to satisfy the characterization of his position as being at the senior management or executive level. However, the title, in this case, is not sufficient in and of itself to warrant that characterization in light of what his role and responsibilities actually entailed.4
In applying the Bardal factors, the court paid particular attention to the fact that the employee was age 58, affording him fewer job opportunities than younger individuals with comparable experience, training and qualifications, and pointed to his inability to secure new employment since his termination as evidence.
The court awarded two months’ common law reasonable notice, after noting that:
…providing Mr. George with three weeks’ pay, 2.5 weeks’ continuation of benefits, and no letter of reference and/or outplacement counselling assistance (despite requests for same) was unfair and unreasonable in the circumstances of this case.5
Bottom Line for Employers
George v. Laurentian Bank is a decision that may support an employer’s arguments on reasonable notice in the following respects:
- An employee’s responsibilities, more so than job title, must be taken into account in determining the reasonable notice period; and
- A short-term employee or an employee of advanced age is not automatically entitled to a “rule of thumb” minimum reasonable notice period.
We await further decisions from the courts with respect to COVID-19 and any impact of the pandemic on reasonable notice.