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30-month notice period for former Avaya Canada worker upheld by Court of Appeal for Ontario

by HR Law Canada

The Court of Appeal for Ontario has upheld a 30-month notice period for a professional engineer who was wrongfully terminated by Avaya Canada.

Avaya had appealed the ruling, partially over the fact the lower court awarded a notice period that was much longer than the worker had initially claimed in his Statement of Claim.


The engineer, JL, was let go in March 2021 due to a company restructuring. He was a long-serving employee who had been with the company since May 1982. The dispute centered on the length of the notice period and the mitigation of damages.

JL moved for summary judgment on his wrongful dismissal claim, and both parties agreed that summary judgment was an appropriate method to determine the case.

The motion judge, in her ruling, found that a 30-month notice period was justified in all circumstances and that JLhad adequately attempted to mitigate his damages.

Avaya appealed the decision, arguing that the motion judge had made errors in her judgment. Specifically, Avaya contended that the judge had awarded a notice period longer than what he had initially sought, that she misapplied the factors for determining the reasonable notice period, and that she wrongly concluded that JL had adequately mitigated his damages.

Longer notice period

Regarding the first issue, Avaya claimed that the judge had erred by awarding a notice period that exceeded what JL had sought in his Statement of Claim.

However, the court noted that during the summary judgment motion, JL had argued for a notice period of 36 months, not the 26 months initially claimed. Avaya conceded that this adjustment did not prejudice them, and they admitted that if JL had requested an amendment to his claim, it likely would have been granted. Consequently, this ground of appeal was dismissed.

‘Exceptional circumstances’

Concerning the second issue, Avaya contended that the motion judge incorrectly categorized the case as “exceptional circumstances,” justifying a notice period of 30 months.

Avaya emphasized that JL did not hold a management position within the company. The court disagreed, stating that the principle of reasonable notice in wrongful dismissal cases is designed to provide employees with sufficient time to secure alternate employment. The Bardal approach, which considers various factors such as the character of employment, length of service, age, and availability of similar employment, should be applied on a case-by-case basis.

While there is no absolute upper limit, the court noted that generally, only exceptional circumstances warrant a notice period exceeding 24 months for long-term employees. In this case, the motion judge identified factors, including JL’s specialized skills, patents, and limited availability of similar employment in his area, that justified a 30-month notice period. Therefore, this ground of appeal was also dismissed.


The final issue raised by Avaya pertained to JL’s alleged failure to mitigate his damages. The motion judge found that he had fulfilled his duty to mitigate by actively seeking employment and provided valid reasons for not expanding his job search.

The Court of Appeal upheld these findings, emphasizing that Avaya had not presented sufficient evidence to dispute the motion judge’s conclusions.

In the end, the Court of Appeal for Ontario dismissed Avaya’s appeal and affirmed the 30-month notice period awarded to JL. The court also awarded JL his costs of the appeal in the amount of $20,000.

For more information, see Lynch v. Avaya Canada Corporation, 2023 ONCA 696 (CanLII)

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