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Employment Cases - Wrongful Dismissal - Remedy - 'Exceptional Circumstances'. Milwid v. IBM Canada Ltd.
In Milwid v. IBM Canada Ltd. (Ont CA, 2023) the Court of Appeal considered a wrongful dismissal notice period issue, here regarding 'exceptional circumstances' which may merit a period of more than 24 months [Bardal]:B. NOTICE PERIOD
[3] The motion judge found that the respondent was entitled to 26 months’ reasonable notice, considering his “age, lengthy service, the exclusivity of his employment with the defendant, the character of his employment and specialized nature of his work.” An award over 24 months was found to be warranted because there were exceptional circumstances. It appears that, in finding exceptional circumstances, the motion judge relied on the respondent’s age, length of service with the same employer, managerial position, his compensation in an uncertain economy, and “the technical/skilled nature of his skills geared towards the defendant’s business.”
[4] The appellant submits, relying on Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, that the motion judge erred in basing her finding that there were exceptional circumstances that warrant a notice period in excess of 24 months on the factors set out in Bardal v. The Globe & Mail Ltd. (1960), 1960 CanLII 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.). We do not accede to this submission. There is nothing impermissible in relying on the constellation of Bardal factors, along with other exceptional circumstances, to find that a notice period exceeds 24 months: Currie v. Nylene Canada Inc., 2022 ONCA 209.
[5] In this case – similar to the situation in Currie – the evidence established that the respondent’s skills were not transferrable because they related, almost exclusively, to the appellant’s products. This is an exceptional circumstance not covered by the Bardal factors, which could warrant a notice period exceeding 24 months. Therefore, we see no error in the motion judge’s decision to fix reasonable notice at 26 months.
[6] The appellant also submits that the motion judge erred in finding that an additional month of notice, bringing the total to 27 months’ notice, was appropriate to reflect the circumstances of the COVID-19 pandemic. This finding is entitled to deference by this court and was well supported by the evidence in this case. The pandemic was a truly exceptional circumstance, and the respondent lost his position right at the time the global economy was shutting down. There is no basis to interfere with the motion judge’s decision in this regard.
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