Not all jobs and skillsets have suffered an economic downturn during the pandemic, and should not receive a longer period of reasonable notice for termination during the pandemic without additional evidence, according to a recent Ontario employment case. Marazzato v Dell Canada Inc. is an Ontario Superior Court decision, released January 12, 2021. This decision adds further judicial commentary to the impact of the COVID-19 pandemic on calculating reasonable notice where an employer, including a charity or not-for-profit, terminates the employment contract without cause. The plaintiff’s employment terminated in March, 2020, but he worked in computers, a field that the judge noted may actually have benefited economically from the increase in using the internet. Further evidence is necessary to demonstrate that the pandemic led to an economic situation that made it more difficult for the employee to find work, according to the judgment. That evidence was not presented in this case, and so the decision rested on the already established common law precedent for calculating reasonable notice.

G. Dow J first went through the factors to consider for calculating reasonable notice from Bardal v Globe & Mail, being age, duration of service, character of employment, and availability of similar employment. Applying the factors to this case, the court found that the plaintiff, Dan Marazatto, was 59 years old at the time of his termination on March 4, 2020. He had worked for the employer for 14 years. His income ranged from $464,580.06 in 2017 to $466,502.24 in 2018, to $465,695.75 in 2019. As “Senior Manager Director Sales” he supervised nine employees and was the “top executive of the defendant for direct sales in Canada.” Marazatto had made efforts to find new employment but remained unemployed as of the date of the hearing on December 9, 2020. “Mr. Marazzato was paid for two weeks of working notice, 14.2 weeks of statutory service and eight weeks of termination pay pursuant to the Employment Standards Act, 2000. Eight weeks of continuing benefits were also paid,” Dow J noted.

Marazatto sought 20 months of pay in lieu of reasonable notice. The employer argued instead for 16 months of pay-in-lieu. Although not “old” by today’s standard, according to Dow J, Marazatto’s age favours a longer period of reasonable notice, as does his 14 years of service. The senior management position he held along with the high-end of salary also favours a longer period of reasonable notice. While the difficulty for him to find a similar position favours longer reasonable notice as well, applying Bardal, Dow J did not consider the COVID-19 pandemic to further lengthen that period in this case. No evidence of “extra difficulty in finding and obtaining a new position” was presented, Dow J stated, and it would not be appropriate to speculate. In fact, it may actually be the case that certain positions and skill sets, such as working in computers as Marazatto did, would have gained an economic benefit from the pandemic because of the greater internet use and “remote practices”. Considering all the Bardal factors, Dow J decided that 18 months of reasonable notice was appropriate.