Insights Header image
Insights Header image
Insights Header image

Does COVID-19 Favour a Longer Reasonable Notice Period? Another Court Says Prove It

March 28, 2021 Employment and Labour Bulletin 2 minute read

Recent court decisions have provided guidance about the impact that the COVID-19 pandemic may have on the reasonable notice period owed to dismissed employees.  The most recent decision, Marazzato v. Dell Canada Inc.,[1] confirms that employees seeking a longer period of notice must provide actual evidence of any alleged “economic downturn” caused by the pandemic.

Background

The employee in this case was a top executive for direct sales in Canada. He had nine employees reporting to him, had been employed for 14 years, and was 59 years old when his employment was terminated without cause in March 2020.  In his last three years of employment, he earned $464,580 (in 2017), $466,502 (in 2018), and $465,695 (in 2019).  At the summary judgment motion, the employee sought a 20-month reasonable notice period.  The employer argued that 16 months was more appropriate.

The court was asked to consider the impact of the alleged economic downturn caused by the COVID-19 pandemic.  Similar to Iriotakis v. Peninsula Employment Services Limited,[2] the court declined to give weight to the pandemic in assessing reasonable notice.  In Iriotakis, the court focused on the uncertainty, at the time of termination, of the impact that the pandemic would have on the economy.  However, in Marazzato, the court focused on the lack of evidence put forth by the employee, who was unable to clearly demonstrate how the pandemic affected his ability to obtain alternative employment.

Without actual evidence, the court said that it was not appropriate to speculate about the impact of the pandemic:

“I was also asked to take into consideration the economic downturn caused by the COVID pandemic as part of this factor.  This would be on the basis there would be extra difficulty in finding and obtaining a new position.  In this regard, I would note no evidence of same was presented to me.  Further, it would not be appropriate to speculate on that submission without evidence. […]  Overall, I would conclude this factor does not favour a longer period of notice.”

The court went on to note that the employee’s skill set may actually have become more desirable during the pandemic, given the increased reliance on computers for access to the internet and remote practices.  In the result, the court found 18 months to be the proper notice period.

Takeaways for Employers

The court’s decision in Marazzato is another positive development for employers who have had to make difficult decisions during the pandemic. It demonstrates that dismissed employees must tender actual evidence of how the pandemic has impacted their job searches, and will not be able to rely upon a general economic downturn in order to receive an enhanced notice period.  The court’s reasoning also reinforces the “balanced approach” put forward in Iriotakis, where it was held that the pandemic should be just one factor used to determine reasonable notice periods, rather than dominating the analysis.

[1] 2021 ONSC 248.
[2] 2021 ONSC 998.

by David Fanjoy & Paul Boshyk

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2021

Insights (5 Posts)View More

Featured Insight

Do You See What I See? Fake AI Cases Can Result in Real Contempt

Reliance on an AI hallucinated case in submissions to the court can constitute a breach of professional obligations and may amount to contempt.

Read More
May 11, 2025
Featured Insight

Canada’s Fighting Against Forced Labour and Child Labour in Supply Chains Act: Where to next for companies?

Join subject matter experts from McMillan and Pillar Two for a webinar to support companies in addressing their forced labour, child labour and other modern slavery risks, and to support their reporting obligations under the Canadian Fighting Against Forced Labour and Child Labour in Supply Chains Act.

Details
Tuesday, May 20, 2025
Featured Insight

Why Extended Producer Responsibility and the Circular Economy Demand Boardroom Action

Discussion of global amendments to Extended Producer Responsibility (EPR) and right to repair laws, impacting product lifecycle management and regulatory compliance for businesses.

Read More
May 6, 2025
Featured Insight

Québec’s Bill 96: Where we are now after four years and the road ahead

Join Enda Wong, Business Law, Shari Munk-Manel, Employment & Labour Relations, and Émile Catimel-Marchand, Financial Services and Regulatory as they discuss Bill 96, its impacts on the day-to-day operations of companies doing business in Québec, including in the areas of employment, contracting, product design, labelling and advertising.

May 5, 2025
Featured Insight

Put Your Best Foot Forward: New Evidence Requirements for Trademark Appeals

Discussion of amendments to Canada's Trademarks Act impacting timing of delivery of evidence to the Trademark Opposition Board or later to the Federal Courts.

Read More
Apr 30, 2025