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Employment - Implied Term of Reasonable Notice of Termination. Nahum v. Honeycomb Hospitality Inc.
In Nahum v. Honeycomb Hospitality Inc. (Div Ct, 2021) the Divisional Court considered pregnancy of the dismissed employee as a Bardal factor:[13] The motion judge considered the Superior Court case of Harris v. Yorkville Sound Ltd., [2005] O.T.C 1065, 2006 C.L.L.C. 210-027 (S.C.) where Dambrot J. concluded that he did not require evidence to find that the plaintiff’s pregnancy did not enhance her immediate employability and added two months’ notice. The motion judge also cited this Court’s decision in Ivens v. Automodular Assemblies Inc. (2002), 162 O.A.C. 124, 18 C.C.E.L. (3d) 240 (Div. Ct.) where this Court noted that the appellant’s pregnancy complications were a “Bardal-type factor” that should have been considered by the trial judge.
[14] The motion judge distinguished Colburn v. Unity Savings and Credit Union Ltd., [2001] O.T.C. 543 (S.C.) because it was decided before the Ivens trial judgment was overturned by this Court. The motion judge rejected the appellant’s submission that including pregnancy would imply that prospective employers will violate human rights legislation for their hiring decisions and the dismissing employer will be held responsible for others’ wrongs, and instead drew a parallel to the disability context.
[15] We conclude that the motions judge did not err. The motion judge correctly applied a line of case law that supports her conclusion. The motion judge did not proceed on the basis that pregnancy would automatically lead to an extension of the notice period. She expressly rejected that approach. Each case must be considered on its own facts.
[16] Considering pregnancy as a Bardal factor is consistent with the Bardal framework because each case must be determined on its own facts. As for judicial notice, courts have already taken judicial notice of the fact that pregnancy makes re-employment more difficult, adding weight to the view that it is a common-sense observation. . Howard v. Benson Group Inc. (The Benson Group Inc.)
In Howard v. Benson Group Inc. (The Benson Group Inc.) (Ont CA, 2020) the Court of Appeal reviews the employment law that, absent a contractual term otherwise, there is an implied term to provide reasonable notice on termination:[20] There is a common law presumption that every employment contract includes an implied term that an employer must provide reasonable notice to an employee prior to the termination of employment. Absent an agreement to the contrary, an employee is entitled to common law damages as a result of the breach of that implied term: Bowes v. Goss Power Products Ltd., 2012 ONCA 425, 351 D.L.R. (4th) 219, at para. 23. This presumption can only be rebutted if the employment contract “clearly specifies some other period of notice, whether expressly or impliedly”: Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986, at p. 998; Ceccol v. Ontario Gymnastic Federation (2001), 2001 CanLII 8589 (ON CA), 55 O.R. (3d) 614 (C.A.), at para. 45. The question, then, is whether the motion judge erred in holding that the Employment Contract, without Clause 8.1, failed to rebut that presumption by clearly specifying some other period of notice, expressly or impliedly.
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