Can the Pandemic Warrant a Longer Notice Period?
In a decision released on January 18, 2021, Yee v Hudson’s Bay Company, 2021 ONSC 387, the court pronounced itself on whether the COVID-19 pandemic impacts the length of reasonable notice periods.
The Facts
Marvin Yee was a Hudson’s Bay Company (“HBC”) employee for 11.65 years when his employment ended on August 28, 2019; pre-COVID. He was 62 years old and held the position of Director, Product Design and Development, Private Brands. Since the termination was on a without cause basis and his employment contract contained an unenforceable termination clause, the court was left with determining the appropriate notice period for Mr. Yee.
Mr. Yee’s Argument
Arguing the matter by way of virtual trial, Mr. Yee’s counsel submitted, amongst other things, that Mr. Yee should be entitled to 18 months’ notice. HBC argued that he should only be entitled to 11 months’ notice.
In a nutshell, Mr. Yee’s position was that the COVID pandemic had caused an economic downturn, making it more difficult to find another position, which justified awarding a longer notice period. Interestingly, Mr. Yee pointed to ninety (90) unsuccessful job applications to show that he was experiencing increased difficulty obtaining comparable employment. HBC’s response was that the 90 job applications were indicative of opportunities available in Mr. Lee’s field even after COVID hit.
The Ruling
The uniqueness of this case is found in the court’s following ruling, addressing the interplay between notice periods and the current pandemic:
[22] It seems clear terminations which occurred before the COVID pandemic and its effect on employment opportunities should not attract the same consideration as termination after the beginning of the COVID pandemic and its negative effect on finding comparable employment.
The court stated that notice should be determined by the circumstances existing at the time of termination – not the length of time it takes an employee to find employment. Because Mr. Yee’s termination occurred pre-COVID, the pandemic was not a relevant factor in determining whether to slide the scale towards a longer notice period.
Despite this finding, the court still awarded a notice period of sixteen (16) months (August 28, 2019 to December 28, 2020). The court reached this conclusion by taking into account the classic Bardal factors, including Mr. Yee’s:
- age (61);
- length of service (11.65 years);
- the managerial nature of his role;
- the fact that he had five (5) direct reports.
If you have been terminated and require advice on whether the pandemic has impacted your entitlements, reach out to one of our experienced employment lawyers.