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Last week in our Employers’ Alert, we wrote about a number of recent age discrimination cases. We also referred to a number of American cases, and we pondered whether there would be an increase in age discrimination cases given the aging of the Canadian workplace, but also the presence of employees who are older than the traditional retirement age of 65. The cases we looked at suggested that we are seeing the beginning of a trend.
A related question is how does older age affect reasonable notice? We know that age is a “Bardal” factor in assessing reasonable notice. The general principle has been that the older the employee, the longer the notice with the idea being that older employees, say those in their 50s, will have a harder time finding re-employment. In some of the more recent cases, the courts appear to be giving additional emphasis to age as a factor in determining reasonable notice, because the employees in question are significantly older than those who have appeared in the case law before. For example, in Hussain v. Suzuki Canada Ltd. (2011), 26 D.E.L.D. 24 (ON S.C.J.), a 65-year-old dismissed employee with 36 years of service was awarded a 26-month notice period, a full two months over the traditional ceiling of 24 months. Here the Court made specific reference to the employee’s age and said:
…at 65 years of age, it cannot be seriously debated that the [employee] is in the twilight if not the end of his working years and that, because of his age, his chances of employment in a similar or even related industry are remote.
It is interesting to note that the case was decided on a summary judgment motion, and the judge, after reviewing the plaintiff’s job search efforts which were comprised of 27 applications with only one response, did not need additional evidence to conclude that age should drive the notice period up.
Similarly in Filiatrault v. Tri-County Welding Supplies Ltd., 2013 ONSC 3091, an Ontario court considered the notice period owed to two dismissed employees in their 80s after 42 years of service. Both employees were in senior roles. While the employees had agreed to limit their claim to 18 months of notice (which they were awarded), the Court commented that the law seldom provides notice periods of more than 24 months, but that “higher notice periods have normally been awarded to persons of senior age” and that this will be an “increasing trend with the statutory end to retirement at age 65.”
In a third case, Kotecha v. Affinia 2013 ONSC 4817, an Ontario court also considered the reasonable notice entitlement of a 70-year-old employee, who had worked for the employer for 20 years as a labourer. He earned just under $38,000 a year. The employee was awarded 20 months on a summary judgment motion, a somewhat surprising result, we would argue, given the character of his employment.
There is the subtle suggestion in these cases that for older employees, reasonable notice may be awarded not so much as an estimation of how long it will take the employee to find another job, because it is implicitly or explicitly accepted that the employee will not or is not likely to mitigate, but rather as a reward for long service.
Janice Rubin and Parisa Nikfarjam