Unfortunately, this is exactly what happened to one of our clients which recently won his case in Saini v Rosedale Transport Limited.  After 10 years of faithful service with his employer, Mr. Saini was laid off during the 2020 COVID pandemic. Not long after his layoff, he was terminated due to a downturn in business. The employer tried to limit the plaintiff’s severance to the bare minimum he was due under the Canada Labour code, a meager 20 days’ worth of pay. 

After De Bousquet PC skilfully argued Mr. Saini’s case before the Superior Court of Justice, the court found that the plaintiff was entitled to 11 months’ pay in lieu of notice.

In reaching this decision, the Court considered numerous factors such as:

• the character of the employment
• the length of service 
• the employee’s age, training and qualifications
• the availability of new employment
• the prospects of finding suitable employment (especially relevant because of the pandemic)

The biggest takeaway is that seeking expert legal representation can help you receive the severance you deserve. For Mr. Saini, De Bousquet PC’s expert team of lawyers were able to win over $40,000.00, in addition to his legal fees (costs).

If you find yourself in a similar situation or have encountered other issues with your employment, do not face your difficulties alone. De Bousquet PC has a proven track record of successfully defending the rights of employees and will help you obtain the best results in your case.

The post De Bousquet PC upholds employee’s right to 11 months’ pay in lieu of notice first appeared on De Bousquet Professional Corporation Blog.

The employee was 54 years old at dismissal and occupied the highest position as President of the
company. He received quick promotions from his initial position as a sales representative in 2004. The
employee has a grade 12 education and has been unsuccessful in securing re-employment. The
employer justified the dismissal for cause stating that he was being terminated for committing fraud. No
explanation was provided. The employer also advised the employee that if he hired a lawyer, it would
counter-claim and would be very expensive.

McKinley v B.C. Tel (2001) states that an “employer has just cause for summary dismissal where the
employees dishonesty gives rise to a breakdown in the employment relationship.” Ontario courts have
focused on whether the employee’s behavior was sufficiently serious to undermine the core of the
employment relationship. (Fernandes v Peel Educational & Tutorial Services Limited (Mississauga Private
School); citing Dowling v Ontario (Workplace Safety and Insurance Board) (2004). In the case at hand,
the trial judge held that the employer failed to prove that the employee’s behaviour gave rise to a
breakdown in the employment relationship. The trial judge provides reasons such as a:

1. Evidence relied upon the employer was known to the employer in January 2015 (emails
   regarding personality issues);
2. High ranking employee (daughter of employer) provided the employee a bonus for the 2014
   business year and expressed her commitment to working with the employee to improve the
   business of the employer; and
3. Two days prior to the termination, high ranking employee emailed to employer regarding the
   employee is silent regarding conduct concerning fraud or misfeasance.

The court then considered the issue of an appropriate notice period. The employer has failed to prove
for cause dismissal and the employee is entitled to reasonable common law notice (Machtinger v HOJ
Industries Ltd.,). The length of common law notice periods is determined by using the Bardal factors: the
age of the employee, the character of his or her employment, the length of service, and the availability
of similar types of employment, considering the experience, training and qualifications of the employee.
(Bardal v Globe & Mail). The employee was president of the company and was 54 years-old at the time
of dismissal. He was employed for 11 years and had 45 people reporting to him. The employee is seeking
a high-level position within the Sarnia area. The trial judge considered factors such as the employee’s
family obligations which require him to remain in the Sarnia area and the fact that the employee’s highest
level of education is grade 12. There is no meaningful opportunity to gain similar employment in the
Sarnia region.

The trial judge distinguishes the case at hand from Singer, where the employee (51 years old) was
terminated without cause from his position as President and General Manager. The Court of Appeal
upheld the trial judge’s award of a common-law notice period of 17 months. In the case at hand, the
employee is older, has family ties that interfere in finding similar employment, was terminated for
serious allegations, and not provided a reference letter. On the basis of distinguishing this unique set of
facts from those of Singer, the Court of Appeal held the notice period of 19 months appropriate.

In determining just cause for dismissal, the Court in Ruston held the employer to a high evidential
burden of establishing conduct amounting to a breakdown in the employment relationship. It appears
that the employer failed to present any evidence regarding the behaviour of the employee that could
amount to such behaviour. In determining a common law notice period with no just cause for dismissal,
the Court is willing to take unique circumstances and considerations into account and consider each
case on an individual basis.

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