While perhaps not at the very top of the list of pandemic-related employment issues that have kept employment lawyers busy over the past year, the impact that the COVID-19 pandemic may have on reasonable notice periods has been the subject of considerable ongoing debate and speculation amongst employment law practitioners in Ontario. Since the availability of similar employment is one of the four main factors courts will consider in setting reasonable notice periods (the other three being the individual’s age, length of service, and the character of their employment), many argue that the pandemic is likely to increase reasonable notice periods because of the added difficulty individuals will face finding alternate work during the pandemic, while others suggest that courts may be sympathetic to businesses experiencing economic hardship as a result of government-mandated lockdowns and other restrictions in setting reasonable notice periods for terminated employees.
Although we do not yet have a definitive court ruling on the pandemic’s impact on reasonable notice periods, a recently released decision of the Ontario Superior Court, Yee v. Hudson’s Bay Company, provides some insight into how this issue may be decided.
The Court in Yee confirmed that the COVID-19 pandemic should not increase the reasonable notice period for an employee who was dismissed before the COVID-19 pandemic began, since reasonable notice is assessed based on the circumstances existing at the time of termination.
In Yee, the Court was asked to determine the reasonable notice period for Melvin Yee, a Director-level Hudson’s Bay employee who was terminated without cause on August 29, 2019 (i.e., before the COVID-19 pandemic began). Mr. Yee, who was 62 years old at trial and had worked for Hudson’s Bay for 11.65 years in a senior-level position, claimed he was entitled to eighteen (18) months of reasonable notice, while Hudson’s Bay argued he was only entitled to eleven months (11) months of reasonable notice. In support of his claim for eighteen (18) months of reasonable notice, Mr. Yee submitted that his poor prospects for finding a similar job justified a notice period at the highest end of the range of reasonable notice. He argued that, in setting the notice period, the Court should consider the COVID-19 pandemic and the resulting increased difficulty in obtaining comparable employment, noting that he had applied for around ninety (90) jobs since his termination without success.
While the Court in Yee acknowledged that economic factors, such as a downturn in the economy or in a particular industry or sector, that indicate that an employee may have difficulty finding another position may justify a longer notice period, it reiterated that notice periods must be determined based on the circumstances existing at the time of termination. On that basis, the Court explained that “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” (emphasis added). Mr. Yee, whose employment was terminated several months before the COVID-19 pandemic began, was ultimately awarded sixteen (16) months of reasonable notice.
Despite the Court’s refusal in Yee to increase Mr. Yee’s notice period as a result of the global pandemic that ensued after his termination, its comments certainly suggest that the courts may well be prepared to consider this as a factor weighing in favour of longer reasonable notice periods for employees who lose their jobs during the COVID-19 pandemic. The Court’s decision in Yee is just the tip of the iceberg in terms of cases addressing COVID-19 and we certainly expect more definitive guidance on this issue to emerge as more pandemic termination cases make their way to court.
Disclaimer: As always, this post does not constitute legal advice and we would encourage you to seek professional legal advice from one of our knowledgeable lawyers before making any decisions with respect to your own case.
 2021 ONSC 387 (“Yee”)
 Yee, supra, at para 22.