Are common law notice periods in Saskatchewan expanding?

Historically, Saskatchewan courts have adhered to a maximum notice period of 18 months when awarding pay in lieu of notice for long-time employees terminated without cause. However, recent case law would seem to suggest that this “cap” could be on the rise in Saskatchewan.

It would be easy to initially overlook the 24-month notice period recently awarded in Ketch v. Meadow Lake Mechanical Pulp Ltd., 2023 SKKB 241, in light of the other details of the case - the plaintiff, an employee of Meadow Lake Mechanical Pulp Mill (MLM), was terminated after he developed a romantic relationship with a summer student, “M.” The romantic relationship began to develop at work and continued after M’s summer term ended.

M was the daughter of another MLM employee, the plaintiff’s friend and supervisor. Over the course of several months, the relationship between the plaintiff and M became more serious. When he learned of the ongoing relationship, M’s father became extremely upset and engaged in a “campaign of shock and awe slander against the plaintiff”. Ultimately, the conflict between the plaintiff and M’s family culminated in a Hatfield/McCoy-style physical altercation, where M’s father and brother attended the plaintiff’s house and “administer[ed] a beating to the plaintiff.” Shortly thereafter, the plaintiff was terminated on several grounds, but chiefly for not disclosing his relationship with M and for taking extended breaks to shoot gophers.

The court determined that the employer lacked sufficient grounds for termination and the plaintiff was entitled to pay in lieu of notice. As a long-time employee in his forties who occupied a supervisory position at MLM, the court held that an extended notice period was appropriate. Relying exclusively on case law from Ontario and Alberta, the trial judge determined the appropriate notice period to be 24 months.

Beyond reasonable notice cap

Notice such as was awarded in Ketch has only one real comparator in Saskatchewan. In Swidrovich v. Saskatchewan Place Association Inc., 2019 SKQB 50, two senior employees of Saskatoon’s major event centre (SPA) were terminated following a business trip. The employees were responsible for developing sponsorship relationships for SPA, a role which had previously involved travelling to entertain business partners and attend events at other event centres. Shortly before the excursion at issue, SPA’s Executive Director retired and a new Executive Director started. Prior to his retirement, the former Executive Director had authorized the plaintiffs to travel to Phoenix, a trip similar to others the plaintiffs had attended in years prior. However, the incoming Executive Director interpreted this as a personal trip for which the plaintiffs inappropriately charged their expenses to SPA. SPA determined that the plaintiffs had breached their duty of honesty, and the plaintiffs’ employment was terminated.

The court determined that SPA had not established just cause for terminating the plaintiffs’ employment, particularly due to the fact that the impugned trip had been pre-authorized by the plaintiffs’ former superior. Both employees were older, at ages 56 and 62, and they both had a long tenure with SPA and held senior positions, entitling them to a lengthy notice period. The court awarded 20 months of pay to the 56-year-old plaintiff and 24 months to the 62-year-old.

In other provinces, the notice periods awarded in Ketch and Swidrovich would not have raised eyebrows. For instance, common law notice periods in Ontario regularly exceed 18 months, and notice periods as high as 26 months have been awarded – see, for example, Keenan v. Canac Kitchens Ltd., 2015 ONSC 1055. Similar notice periods have been awarded by courts in Alberta. However, Saskatchewan’s courts have historically capped notice periods at 18 months, even where circumstances might have otherwise justified a longer notice period in other jurisdictions – see, for example, Bohay v 567876 Saskatchewan Ltd., 2009 SKPC 128. Ketch and Swidrovich may mark Saskatchewan’s departure from its traditional “cap” and suggest a willingness on the part of the province’s courts to award lengthier notice periods to long-term employees.

However, these two cases may not be as indicative of a systemic change as may appear at first glance. There is no discussion in either case of Saskatchewan’s historical 18-month cap on notice damages, and neither decision provides rationale explaining why the circumstances of the case were so exceptional as to warrant a departure from the court’s past practice. It is also interesting to note that in neither case did the court consider Saskatchewan precedent when determining an appropriate notice period.

Alberta, Ontario case law considered

In Ketch, the court looked exclusively to case law from Alberta and Ontario, both jurisdictions that traditionally award higher notice periods than Saskatchewan. There is no indication that there was any Saskatchewan case law regarding notice periods before the court. Similarly, in Swidrovich, the court does not refer to case law of any jurisdiction in arriving at the conclusion that notice in excess of 18 months was appropriate, and it does not appear that the issue was argued all that fulsomely by counsel.

Swidrovich and Ketch certainly stand as the current high-water marks in Saskatchewan when it comes to notice periods. However, only time will tell if they are truly indicative of an intentional departure from the historical approach to notice periods in Saskatchewan, or simply stand as cautionary tales to counsel and management to ensure that the issue of what is a reasonable notice period is thoroughly canvassed with Saskatchewan precedent when these sorts of cases come before the Saskatchewan courts in the future.