Since the beginning of the COVID pandemic, given its severe negative effects on the job market, there has been an outstanding question of how Courts in Ontario will resolve employment termination cases in the context of the pandemic. Due to the time required from the day of termination until a matter is resolved in Court, that question is expected to remain open for a long period of time. However, we have recently began seeing decisions from Courts in Ontario for terminations during the pandemic which have started providing guidance.
Recently, the Superior Court of Ontario, in its decision for Yee v Hudson’s Bay Company, 2021 ONSC 387, addressed the issue of reasonable notice in the context of COVID.
Generally speaking, when an employee is terminated, when assessing the amount of reasonable notice that should have been given by the employer, Courts will consider various factors, one of them being the availability of similar or comparable employment and economic circumstances in the job market. In certain cases, where the Court determines that there is low or reduced availability of similar employment, it may extend the notice period to compensate for the fact that it may take longer for the terminated employee to obtain similar or comparable employment.
It remains to be seen if the Courts will in fact extend notice periods, however, the Court in Yee determined that, where an employee was terminated prior to the start of the COVID pandemic, the impact of the pandemic on the availability of employment will not result in a longer notice period. The Court in Yee expressed that:
“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.” (See Yee, para 22)
In reaching this conclusion, the Court considered that, with respect to reasonable notice, it must take into account the circumstances existing at the time of termination (See Yee, para 21). Consequently, it now seems that, even though a terminated employee may be affected by the effects of the pandemic on the job market, and he or she may take longer to find a job as a result, the Court will not extend the notice period where the employment was terminated prior to the beginning of the pandemic.