Wednesday, January 27, 2016

Only exceptionally will a notice period exceed 24 months

Keenan v. Canac Kitchens Ltd., 2016 ONCA 79:

[30]         If it fails on the first ground of appeal, Canac asks this court to set aside the trial judge's award of damages of 26 months of notice.  Canac founds its position on this court's decision in Lowndes v. Summit Ford Sales Ltd., [2006] O.J. No 13 (C.A.).  At para. 11 of Lowndes, this court stated that while the reasonable notice period is a case-specific determination and there is no absolute upper limit on what constitutes reasonable notice, generally only exceptional circumstances will support a notice period in excess of 24 months.  Canac says that the trial judge erred in principle by failing to make a finding of exceptional circumstances before awarding damages for reasonable notice in excess of 24 months.  Consequently, it submits, this court can set aside the award.  It urges this court to make an award of between 16 to 18 months but, in any event, not greater than 24 months.  

[31]       I agree that the trial judge failed to expressly make a finding of exceptional circumstances.  I note that as part of the agreed statement of facts, the parties presented an agreed damages calculation that included figures for up to 26 months of notice.  This may explain why there is no explicit finding of exceptional circumstances as it clearly indicates that an award beyond 24 months was in the contemplation of all parties.  In any event, however, given the Keenans' ages and lengths of service, and the character of the positions that they held, I would not interfere with the award.   

Of the Law Societies of Upper Canada and Nunavut 

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