A colleague drew the recent decision of the Yukon Court of Appeal in Cabott v. Urban Systems Ltd., 2016 YKCA 4 (CanLII) to my attention.
Urban Systems Ltd. dismissed 53 year old Ms. Cabott was terminated without cause after 14 months’ employment with the defendant as a professional planner and supervisor for the defendant’s northern practice in Whitehorse. Ultimately, she was paid a 3 and ½ month severance. She sued (Cabott v. Urban Systems Ltd., 2015 YKSC 25 (CanLII)). The Court concluded that 6 months was appropriate, including her “expectation of secure employment and possible eventual transition of work and retirement to Vancouver.”
The determination of reasonable notice is not an exact science. The Court of Appeal noted:
“[11] Further, some of the Bardal factors are interrelated, and the emphasis placed on them in any era to some degree reflects the job market and the courts’ perception of workers of a certain age or expertise. For example, the significance of the character of the employment (described in Ansari as “the responsibility of the employment function”), relates at least in part to the availability of replacement employment, and the emphasis on age in part reflects a perception that people of certain ages may have more success or difficulty in obtaining replacement employment, particularly in cases of long service in which the employee has not been required to seek out new employment for considerable time. In this imprecise framework, a body of jurisprudence has developed applying the usual factors to various circumstances – a bed of legal experience – that provides a range of notice periods for like cases. The concept of range in wrongful dismissal cases promotes the orderly resolution of differences by guiding the employer community in determining fair notice periods on termination of employment, and the employee community in assessing the fitness of a severance package. A practical consequence of this development is that a notice period that is anomalous, without good reason, will be said to be unreasonable and subject to interference by an appellate court.”
The Court of Appeal found that “the judge erred in referring to an ‘expectation of … possible eventual transition … to Vancouver’.” It may have been Ms. Cabott’s desire to relocate, but it was not part of the contractual arrangement. The Court noted that for “short term employee the useful starting place in discussing range is the two to three months.” The Court reduced notice to 4 months.