Court Invalidates Working Notice Period – Qualitative Component Absent

It is a well-known fact that employers must provide their employees with “reasonable notice” of the termination of their employment. But, is there a qualitative component as to what is “reasonable”, in addition to a quantitative component?

In the case of Wood v. CTS of Canada Co., 2017 ONSC 5695, the Honourable Justice John R. Sproat, ruled that there was. Later, and for reasons reported as Wood v. CTS of Canada Co., 2018 ONCA 758, the Court of Appeal for Ontario agreed that not all notice periods are created equal.

Divisional Court Dismisses Appeal in Case Concerning Working Notice Being Inappropriate for Employees on Disability Leave

On November 24, 2017, in a post titled, Working Notice Inappropriate for Employees on Disability Leave, I blogged about the decision of the Ontario Superior Court of Justice (Hood, J.) in McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073.

As the title of that post suggests, at that time, the Superior Court had found that a period of working notice did not ‘count’ with respect to an employee absent from employment on disability leave.

On March 19, 2018, a three-member bench of the Divisional Court (Swinton, Sachs and Corthorn JJ.) dismissed the employer’s appeal: McLeod v. 1274458 Ontario Inc. o/a Frontier Sales Limited, 2018 ONSC 1866 (CanLII).

Employers May Not Make Changes to Terms of Employment During Working Notice Period

In the 1997 movie “Wag the Dog” the spin doctors hired to get the President re-elected release an ad campaign with the slogan “Never change horses in mid-stream.” That idiom serves as a powerful and important reminder for employers that might seek to change the terms of an employee’s employment during a period of so-called “working notice.”

In a short decision released by the Court of Appeal for Ontario, Nufrio v. Allstate Insurance Company of Canada, 2017 ONCA 948 (CanLII), Ontario’s top court reinforced this principle.

Working Notice Inappropriate for Employees on Disability Leave

Few things in law are certain. Even fewer things in life are certain. In fact, it is said that only two things in life are certain: death and taxes. Allow me to submit that there is one more thing in life of which you can be certain: your mother is, was, and will be correct.

Among the myriad things about which your mother was correct is the fact that if you were too sick to go to school, then you were too sick to go out and play once your friends got home from school.

I raise this tautology, actually a repetition of an argument that I made in paper that I authored in 2010 titled Sick of Work? The Legal Minefield of Workplace Burnout, in respect of the case of McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073, which held that working notice was inappropriate for an employee absent from work on medical leave.