Ontario Superior Court Makes Statement on Calculating Reasonable Notice

In Chin v. Beauty Express Canada Inc., 2022 ONSC 6178 (“Beauty Express”), the Ontario Superior Court considered an employee’s service with her previous employer in calculating her total years of service.

The Plaintiff was a part-time aesthetician at Beauty Express, a salon located in The Bay. She began working for Beauty Express in 2013 after her former employer, Premier Salons, went bankrupt. She had been working with Premier Salons since 1999. Her job with Beauty Express was practically identical to her job with Premier Salons. The Plaintiff worked for Beauty Express from 2013 until her termination in 2019. She was provided approximately 11 weeks’ working

The Plaintiff and Defendant, Beauty Express, agreed that the Plaintiff had only six years of service. The Plaintiff began working in 2013 and was terminated in 2019. The parties further agreed that Premier Salons’ bankruptcy in 2013 was a constructive dismissal which ended the Plaintiff’s employment. The Plaintiff therefore had no continuous employment between Premier Salons and the Defendant, Beauty Express.

Ultimately, Justice Morgan considered the Plaintiff’s work experience at Premier Salons in determining the appropriate amount of notice the Defendant owed the Plaintiff.

The Employment Agreement

Employment agreements form the foundation of the employment relationship between the employer and employee. In Beauty Express, the employment agreement proved to be the determining factor in the Plaintiff’s entitlement to common law notice.

In 2018, the Plaintiff was provided with a document entitled “Employee Policies and Agreements”, and she was advised to return a signed copy of the document by the end of her shift. The Plaintiff was not given adequate time to review the document and English was her second language. While the document expressed the Plaintiff’s right to seek independent legal advice, she did not reasonably have the opportunity to do so. She also did not receive any consideration for her signing of the agreement.

The Court determined that the employment agreement was void and unenforceable. As stated in Braiden v La-Z-Boy Canada Limited, 2008 ONCA 464, a new notice provision in a contract constitutes a significant modification to reasonable notice and this requires consideration. The lack thereof would render the employment agreement void.

Evaluating Length of Service

In determining what constitutes reasonable notice, the courts will consider the employee’s length of service, their age, the nature of their employment, and the availability of similar work in the marketplace – collectively referred to as Bardal factors, named after the decision in Bardal v. Globe & Mail Ltd. In Beauty Express, the Plaintiff was 69 years old at the time of termination and was working as an aesthetician for the Defendant. However, her length of service was under dispute.

The Plaintiff argued that her length of service was 20 years based on her combined time at Premier Salons and with the Defendant. In the Plaintiff’s view, her experience with Premier Salons should be considered because her job functions were identical, and she transitioned seamlessly into working for the Defendant. However, the Defendant argued that the length of the Plaintiff’s employment was 6 years based solely on her time with the Defendant.

Justice Morgan determined the Plaintiff was entitled to half of the notice she would have received as a 20-year employee. According to Justice Morgan, the length of the Plaintiff’s employment with Premier Salons was important as it was her tenure that allowed her to bring such experience to the Defendant. Justice Morgan clarified that the nature of the employee’s work is of significance. The Defendant incurred a significant advantage as the Plaintiff’s job required specific and extensive training and the Plaintiff already had this experience at the time of her hiring, thereby saving the Defendant time and money in not having to train her.

Justice Morgan determined the Plaintiff would be entitled to 10 months’ notice or pay in lieu of notice, less the approximately 3 months of working notice she had already received.

Aggravated and Punitive Damages

To satisfy the threshold for punitive damages, the alleged conduct must be an independent actionable wrong and high-handed, malicious, and oppressive misconduct that constitute a marked departure from the ordinary standards of decent behaviour.

The Plaintiff cited numerous incidents to support her claim of punitive damages, including a reduction in hours, being singled out, and a post-termination meeting. Mr. Luborsky, the President of Beauty Express, poorly executed a post-termination meeting. The meeting was expletive laden and ill-conceived. In fact, one employee mentioned seeking independent legal advice, and Mr. Luborsky stated, “A lot of lawyers say stupid things”. While the language used
by Mr. Luborsky was insensitive, it was not oppressive nor demonstrably hurtful. The court determined that punitive damages is not intended to police words nor etiquette, therefore Mr. Luborsky’s actions did not amount to an award for punitive damages.

Age Discrimination

Due to the Plaintiff’s age at the time of termination, 69 years old, and the post-termination conduct of Mr. Luborsky, the Plaintiff was concerned that her age played a role in her termination. During the post-termination meeting, Mr. Luborsky made several references to older employees. However, the court determined that he did not discriminate based on age as
the mass termination included young and old employees. In addition, he addressed older employees explicitly as they were the ones who expressed concerns over the proposal, and he was intending to address their concerns.

Awarding Damages

Ultimately, the court did not find that Mr. Luborsky’s actions warranted punitive damages nor discrimination. However, the court considered the Plaintiff’s prior years of service with Premier Salons and determined that she was entitled to 7¼ months’ pay in lieu of notice.

This article was written by Marissa Hum and was originally published by The Lawyer’s Daily on January 13, 2023. Marissa is an articling student at Monkhouse Law Employment Lawyers.  

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