Ontario Court of Appeal Upholds 30 Months’ Notice for Terminated Employee

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In Lynch v. Avaya Canada Corporation, 2023 ONCA 696, the Ontario Court of Appeal found that 30-month notice period was an appropriate award for wrongful dismissal.

The appellant, Avaya Canada Corporation (“Avaya”), terminated the employment of the respondent, John Lynch, a professional engineer due to a company restructuring. The respondent had worked for Avaya and the prior owner of the business for 38.5 years.

The motion judge found a 30-month notice period was appropriate in all circumstances. Avaya appealed the decision contending that the motion judge erred by wrongfully concluding that the circumstances in the matter placed it within the “exceptional circumstances” category of cases, which would justify a notice period in excess of 24 months.

The Court recognized that there is no absolute upper limit or “cap” on what constitutes reasonable notice, however, the Court confirmed that only exceptional circumstances will support a base notice that exceeds more than 24 months.

Although the motion judge did not provide reasons for concluding what factors constituted “exceptional circumstances”, the Court of Appeal provided factors which would justify the award in excess of 24 months.  The factors were as follows:

  • Lynch specialised in the design of software to control unique hardware manufactured by Avaya at its Belleville facility;
  • it was uncontested that Mr. Lynch’s job was unique and specialized, and that his skills were tailored to and limited by his very specific workplace experience at Avaya;
  • during his lengthy employment of 38.5 years, Mr. Lynch developed one or two patents each year for his employer;
  • Avaya identified Mr. Lynch as a “key performer” in one of his last performance reviews; and
  • although similar and comparable employment would be available in cities such as Ottawa or Toronto, such jobs would be scarce in Belleville where Mr. Lynch – who was approaching his 64th birthday – had lived throughout his employment.

These are extremely unique factors that are unlikely to exist in most cases.

Avaya submitted Mr. Lynch took no reasonable steps to mitigate his damages by seeking other employment, and as such the notice period should be reduced. The Court of Appeal disagreed. The Court of Appeal deferred to the motion judge’s acceptance of Mr. Lynch’s evidence relating to his efforts to find employment and his reasons for not expanding his search.

The Court of Appeal dismissed the appeal.