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24-Month Notice “Cap” Exceeded: 65-Year-Old Employee Gets 26 Months

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In the November 2011 Ontario case of Hussain v. Suzuki Canada, the court awarded 26 months’ notice to a 36 year employee who was almost 65 years old. The fact that the employee was close to what once would have been a reasonable retirement period did not seem to matter, as there was no evidence that he was set to retire imminently. Based on his exceptional circumstances, the employee was awarded 26 months. In addition, given the employee’s age and length of service, the court found that there was only a 1% change of re-employment. Therefore, the mitigation reduction in this case was only 2 weeks.

This case is interesting because our courts used to exceed the 24-month “cap” if they provided extended notice for bad faith terminations. However that disappeared with the Honda v. Keays decision, at which point the cap came back down to 24 months.

This case demonstrates that some judges, in exceptional cases, will still exceed the 24-month notice “cap”.

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