View cases - Stewart McKelvey

- 15 -supervised by the plaintiff. In Honda, Mr. Justice Bastarache recognized the recent trend togive less consideration to the dismissed employee’s position in the hierarchy and insteadsuggested (at para. 30) that: “The particular circumstances of the individual should be theconcern of the courts in determining the appropriate period of reasonable notice. Traditionalpresumptions about the role the managerial level plays in reasonable notice can always berebutted by evidence.” He suggested (at para. 27) that what matters is experience andqualifications, in addition to the other factors mentioned in Bardal. He also stated (at para.32) that: “No one Bardal factor should be given disproportionate weight.”2011 SKQB 318 (CanLII)[39] Length of service is another factor which has often borne disproportionate weight inpast court decisions. The rule of thumb was to award one month of notice for each year ofservice—a rule which severely penalized short service employees.[40] This is an issue that was recently thoroughly canvassed in the Ontario Court of Appealdecision Love v. Acuity Investment Management Inc., 2011 ONCA 130, [2011] O.J. No. 771(QL). At trial, the plaintiff was awarded damages equivalent to five months notice. He was achartered accountant who had worked for the investment management company for two anda half years as a senior vice-president in charge of institutional investment clients. He hadacquired a small equity position in the company and expected to increase his holdings evenmore.[41] The Ontario Court of Appeal allowed the plaintiff’s appeal on the issue of the lengthof reasonable notice, finding that the trial judge had overemphasized Mr. Love’s short lengthof service, underemphasized the character of his employment, and failed to consider theavailability of similar employment. The Court of Appeal extended the period of notice uponwhich damages were to be calculated to nine months.