Forbes v Glenmore Printing Ltd., 2023 BCSC 25 (CanLII)
In this case, the plaintiff was laid off due to Covid, which, the parties agreed, amounted to constructive dismissal. The question before the Court was entitlement to damages.
The employment contract provided (in part):
Glenmore Printing may terminate this Agreement by giving the Employee,
(a) After the first three months of continuous employment, one week’s notice or wages,
(b) After the first year of continuous employment, two weeks’ notice or wages, and
(c) After three consecutive years of employment three weeks’ notice or wages, plus one additional week’s notice or wages for each additional year of employment to a maximum of eight weeks’ notice or wages.
The employee argued that the clause was unenforceable because, while it met employment standards for individual terminations (s. 63), it did not meet group termination standards (s. 64).
The Court’s reasoned that the purposes of s. 63 and s. 64 were different. First, “in order to oust the common law entitlement to reasonable notice, a contractual term must meet the minimum statutory requirements set out in s. 63. The s. 64 notice requirements, being additional statutory rights not found in the common law, do not establish the minimum standard that is required to oust an employee’s common law entitlement to reasonable notice.” (Para. 40).
Second, the fact that the termination clause was silent with respect to group terminations did not make the clause unenforceable: see Nemeth v. Hatch Ltd., 2018 ONCA 7, and Roden v. Toronto Humane Society, 2005 CanLII 33578 (ON CA). The Court noted: “the Termination Clause is similar to the clauses in Roden and Nemeth in an important way: like the termination clauses in those decisions, the Termination Clause does not purport to expressly exclude any statutory notice requirements. In my view, the similarity is most instructive and distinguishes this case, as Roden and Nemeth were distinguishable, from the decisions in Machtinger, Shore, and Rutledge v. Canaan Construction Inc., 2020 ONSC 4246 [Rutledge], a third decision relied on by Mr. Forbes.” (Para. 60). In Nemeth, the Ontario Court of Appeal “concluded that the silence on severance pay did not denote an intention to contract out of Ontario’s employment standards regarding additional severance pay, and thus the termination clause was not void.”
The termination clause was enforceable. Accordingly, the plaintiff was not entitled to reasonable notice.