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Components of a Severance Package

When receiving a severance package, the primary consideration for most employees is the number of weeks of notice or severance that are paid to them; however, there are other components that must be considered before accepting a severance package. 

Firstly, this discussion addresses severance package entitlements of employees in Ontario that have been terminated from their employment without cause.  For those employees that have been terminated for just cause, the entitlement to severance is nil. That said, in many just cause termination cases, the employer has weak grounds for the termination (i.e., in other words, they would not successfully satisfy the threshold for just cause) and as such, a severance package may be attainable through a negotiation or Court action for wrongful dismissal.

With respect to the without cause terminations, an employee’s severance entitlement is either (i) determined in accordance with the terms of an employment contract that contains an enforceable termination clause, and in no case less than the minimum entitlements prescribed by the Employment Standards Act; or (ii) is based on the principles of the common law (i.e., judge-made law) in Ontario, which has set out various factors that must be assessed to determine “reasonable notice” of termination.

In calculating reasonable notice of termination or pay in lieu thereof, Ontario Courts have enumerated a non-exhaustive list of relevant factors, including:

  • Age of the employee;
  • Duration of service (including any successive fixed-term contracts);
  • Seniority at the company;
  • Total compensation (including base salary plus bonus, with more weight given to more substantial bonuses that form an integral component of compensation); and
  • The availability of comparable employment given labour market conditions. 


In addition to the compensation paid out in accordance with the above considerations, an employer will issue a Record of Employment (ROE) to Service Canada to qualify for employment insurance. 

The employee will then be required to return all company property and the company in exchange will return all personal property to the employee. 

Often, companies will require that the employee update their social media profiles to reflect that they no longer are employed in the same position.

The employee will be continued on the employers group benefit plan and regular contributions will be made to continue health and dental insurance coverage for, at minimum, the statutory notice period.

The employee may be entitled to vesting of stock options, restricted share units, or other incentive compensation plans depending on the terms of the applicable policy. 

The employee may have to comply with various restrictive covenants including a non-competition clause (restriction from working in the same or similar line of business in a given geography for a certain period of time), non-solicitation clause (precluded from soliciting former clients or employees of the employer for a separate venture), non-disparagement (restriction against publicizing negative comments about the employer) and confidentiality provisions. 

Companies may also offer terminated employees career counselling and resume building services to facilitate their job search. 

In exchange for all of the above consideration, the company will request that an employee signs a Full and Final Release, which is a legal document that prevents the employee from seeking any further compensation or any future claims against the employer, or any party that may seek indemnity by the employer, for any matters relating to the employment.  In essence, the Release is a document that acknowledges that the severance package agreed upon satisfies all of the employees legal rights. 

Job Loss during COVID-19: Government Subsidies and Benefits

Many businesses and workers have suffered severed financial loss as a result of mandatory business closures resulting from COVID-19. Fortunately, the government of Canada and the province of Ontario have stepped up by introducing a number of programs to help alleviate the negative impact of the economic downturn. In this blog post we will highlight a few of the government programs designed to assist workers who have been impacted by the pandemic and also commercial landlords and tenants.

First, Am I Entitled to Notice or Severance from my Employer?
The Employment Standards Act (ESA) sets out the minimum obligations of employers following the termination of employment, including notice of termination (or pay in lieu thereof) and severance pay obligations. If you have an employment contract that does not specify that your “ESA entitlements represent your full entitlements on the without cause termination of your employment,” you may be entitled to common law notice, which provides for more generous notice requirements.

Whether or not you are entitled to common law notice is based on the terms of your employment contract; and the amount of such notice is dependent on each unique set of circumstances. Terminated employees often contact us advising that “they were the best employees” and they consistently received positive performance reviews. We often hear from terminated employees “how can my employer terminated me and then post a job opening for my former position right away?” These concerns are actually not relevant to the severance equation. As an employees can resign at any time for no reason, any employer can terminate an employee without cause at any time for no reason so long as it is not a discriminatory reason. As a result, your strong performance or the fact that your job may be replaced by another candidate, is not relevant in determining the severance calculation.

The more relevant factors in determining severance entitlements under the common law in Ontario, include but is not limited to: (i) the age of the employee at the date of dismissal – with employees of more advanced age typically entitled to greater notice periods; (ii) the duration of service in the employment, with longer-service employees entitled to more enhanced severance pay; (iii) the seniority or position of the employee, with greater notice periods being awarded to more senior employees with specialized positions; (iv) and the availability of similar employment. During COVID-19, the job market has frozen and it will be most challenging to secure a new job following a termination of employment, entitling the employee to greater severance pay.

The government has also introduced programs to protect workers and businesses that have been negatively impacted by the global pandemic. More details on these programs are provided below:

Benefits for Employers and Employees
Millions of employees have been terminated or temporarily laid-off due to business closures resulting from COVID-19. If you have been terminated from your employment as a result of COVID, you may be entitled to enhanced severance pay given the difficulty you are likely to confront in obtaining replacement employment in a timely manner given the economic downturn. You can contact our employment law firm for a free consultation to discuss your employment rights.

The government of Canada has introduced a number of programs to assist employers and employees that have suffered as a result of the COVID-19 pandemic.

Canada Emergency Response Benefit
The Canada Emergency Response Benefit (CERB) is available to workers (i.e., employees or independent contractors) who have lost their job on account of COVID-19. The Benefit is available to workers:

  • Residing in Canada, who are at least 15 years old;
  • Who have stopped working because of reasons related to COVID-19 
  • Who had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and,
  • Who have not quit their job voluntarily.

The amount of the CERB benefit is $2,000.00 per month for a period of four (4) months.

Canada Emergency Wage Subsidy
The Canada Emergency Wage Subsidy is available to employers whose revenues have decreased by at least 30% as a result of COVID-19. The benefit covers up to 75% of employee wages on the first $58,700 employees earn, or up to $847 per week. The program covers wages from March 15 to June 6, 2020 – and may be (but hopefully will not be required to be) extended should the pandemic continue on for longer than anticipated.

The purpose of the CEWS is to enable employer’s to re-hire workers or at least refrain from laying-off workers due to the economic downturn. To receive the wage subsidy, the employer must be eligible as defined by the benefit, which includes various types of entities (sole proprietor, partnership, corporation, non-profit, etc.) that has suffered an eligible revenue reduction (i.e., 15% revenue decline in March 2020 and 30.0% thereafter for April and May 2020).

Canada Commercial Rent Assistance Program
The Commercial Rent Assistance Program was introduced by the government of Canada to reduce rent for small businesses that have been impacted by COVID-19. The program will provide non-repayable loans to commercial property owners to cover 50.0% of three monthly rental payments for the months April, May, and June 2020. The loans will be forgiven if the property owner agrees to reduce the small business tenants rent by 75.0% during the loss period. The small business tenant will then cover the 25.0% remaining rent.

To be eligible to benefit from the program, eligible businesses will have to pay less than $50,000.00 in monthly rent and have seen their revenues decline by 70.0% as a result of COVID-19 during the three-month period.

If you are an employer or employee residing in Ontario and have questions regarding the governments new benefit programs to assist your business during the economic downturn causes by COVID-19 we would be happy to provide you with guidance. In addition, commercial landlords and small business tenants may require an understanding and interpretation of the Commercial Rent Assistance program to ensure it is implemented in accordance with the benefits parameters.

At Goldstein Law, we practice employment law, commercial leasing, and real estate litigation disputes. We are well-positioned and have the expertise to advise our clients on matters arising out of the COVID-19 crisis.

Employment Law Considerations During COVID-19

Employment Law Considerations

If you are a worker at an essential workplace and are continuing work, your employer has a duty under the Occupational Health and Safety Act to ensure proper hygiene is in place and that employees are given breaks and time to sanitize their hands and practice physical distancing.

For those businesses that have to shut on a temporary basis, either because they are being ordered shut by the government or due to a decline in business that cannot support a complement of staff, a lot of company’s are conducting temporary lay offs

Temporary lay offs are permitted under the Employment Standards Act.  A temporary layoff is one that lasts no longer than 13 weeks in a period of 20 consecutive weeks (it does not have to be 13 consecutive weeks).  The exception is that where benefits are continued or substantial payments are made to the employee, the temporary layoff periods can be extended to 35 weeks in a 52-week period. These provisions are written into the Employment Standards Act.

If you do not have a written employment contract that allows the employer to put an employee on temporary lay off, under normal circumstances, the employee can argue under the common law that they have been constructively dismissed from their employment.  Right now, we are not under normal circumstances.  The common law is fluid and adapts with societal changes. 

There may be a flood of wrongful dismissal cases related to temporary lay-offs due to COVID-19.  There is an alternate argument arising out of contract law referred to as frustration of contract, which refers to an intervening event which neither party anticipated at the time the contract was entered into, the contract is treated as null and void.  Some employers may argue that they have not terminated their employees but rather there has been a frustration of contract. 

Severance Package as Lump Sum Payment or Salary Continuance

When an employee is terminated from their employment without cause, they are entitled to a severance package. The amount of severance they are entitled to is based on the Employment Standards Act (“ESA”) in Ontario and the common law (i.e., judge-made law). The common law has evolved with various precedent cases that have set out factors that are relevant in determining a terminated employees severance pay entitlements. Common law severance entitlements are much greater than the statutory minimum entitlements outlined in the ESA.

Note that this discussion only applies to employees that have been terminated without cause from their employment. Those employees that have been terminated for just cause are not entitled to any severance; however, as we have discussed here in our article on terminated senior executive employees for just cause, and as outlined by the Supreme Court of Canada the threshold for establish just cause is very high. The onus of establishing just cause is on the employer – and if they are unable to satisfy the onus, the employee is then entitled to severance pay and was subject to a wrongful dismissal.

Are You Entitled to Severance Pay Based on the Common Law?
The analysis as to whether a terminated employee is entitled to common law “reasonable notice” of termination, over and above the minimum statutory entitlements prescribed in the ESA (which amounts to one-week per year worked of termination pay, up to a maximum of 8 weeks total; and 1 week of severance pay [subject to satisfying various conditions] up to a maximum of 26 weeks of pay) is firstly based on the terms of the employment contract.

Prudent employers will seek to include “termination clauses” in employment contracts which limit the amount of severance an employee is entitled to upon the without cause termination of employment. The specific language of the clause is very important in determining its enforceability; as such, it is important that employees reach out to a qualified employment lawyer to review the terms of contract. If such clauses are deemed enforceable, which is based on the strict language of the clause, then the employees entitlement upon termination will be limited. If, however, there is an argument that the clause would be unenforceable, this can often mean 10’s of thousands of additional severance entitlements for the employee.

If you are deemed entitled to reasonable notice of termination based on the common law, the employer can pay out your severance in one of two ways: (i) on a lump sum basis; and (ii) on a salary continuance basis. The employer does not have the obligation to pay employees on a lump sum basis despite the oft-held preference. With respect to salary continuance severance payouts, employers will often include a “claw-back” clause, which serves to reduce the remaining severance payments (i.e., by 50.0% of the amounts owing) should the employee secure comparable employment during the notice period.

This clawback clause relates to the employees duty to mitigate its damages following the termination of employment – by seeking out new and comparable employment. The language behind the salary continuance clauses and the severance package agreements in generally should be reviewed by an employment lawyer in the province in which you reside to ensure you are protected to the fullest extent of the law.

Terminating Senior Executive Employees

As we have discussed in various posts, a termination from employment in Ontario can occur in one of two ways; (i) a termination without cause; and (ii) a termination for just cause. As we have noted here, the threshold to establish a termination for cause is very high and the test for establishing just cause was discussed as length by the Supreme Court of Canada in McKinley v. BC Tel 2001 SCC. As noted in McKinley, a contextual interpretation to the employees alleged misconduct is considered in determining whether the employer had just cause for termination, rather that considering the sole instance of alleged misconduct in a vacuum. At paragraph 33:

The courts do not consider an act of misconduct, in and of itself, to be grounds for dismissal without notice, unless it is so grievous that it gives rise to the inference that the employee intends no longer to be bound by the contract of service. There is no definition which sets out, precisely, what conduct, or  misconduct, justifies dismissal without notice, and rightly so.  Each case must be determined on its own facts. . . .

Thus, according to this reasoning, an employee’s misconduct does not inherently justify dismissal without notice unless it is “so grievous” that it intimates the employee’s abandonment of the intention to remain part of the employment relationship. In drawing this conclusion, the Nova Scotia Court of Appeal relied on the following passage in The Law of Dismissal in Canada (2nd ed. 1992), at p. 124:

What constitutes just cause in a specific situation is particularly difficult to enumerate because it depends not only on the category and possible consequences of the misconduct, but also on both the nature of the employment and the status of the employee . . . .

The existence of misconduct sufficient to justify cause cannot be looked at in isolation. Whether misconduct constitutes just cause has to be analyzed in the circumstances of each case.  Misconduct must be more serious in order to justify the termination of a more senior, longer‑service employee who has made contributions to the company.

The last point is the most relevant for the purposes of this discussion. Longer service more senior employees who have a demonstrable history of strong performance and dedication with a company will have more latitude when it comes to alleged misconduct. In other words, it is harder to establish just cause for terminating the employment of a senior executive that a short-term entry-level employee.

Where a senior executive is terminated from their employment without cause, the typical factors as enunciated originally in Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC) continue to apply; including (i) the age of terminated employee, with employees of more advanced age typically entitled to more severance pay given the challenges for older workers to obtain new jobs; (ii) the years of service with the company, with longer service employees being entitled to more severance on average; (iii) the specialization of the job and the corresponding time it is anticipated for the employee to obtain a new job, with more specialized employees likely to have more difficulty obtain comparable employment, thereby entitling them to enhanced notice periods; among other factors.

For senior executives with long lengths of service, they can typically be entitled to severance pay at the high-end of the range awarded by Courts in Ontario. Other considerations including the payment of variable incentive pay, commissions accrued but unpaid to the termination date, continuation of RRSP or pension plan contribution matching, employee benefits coverage continuation, contributions to legal fees, provisions of letters of reference, and outplacement counselling to assist employees with obtaining a new job. These are all requests made in the ordinary course while negotiating severance packages for terminated employees.

Force Majuere & Frustration of Contract In Commercial Leases

Force majeure is a French term – it means “major or superior force.”  It is an unforeseeable event that is outside of the control of the parties. It is a type of contractual provision that you will find across contracts, including in many commercial lease agreements. The clause is included to let a party off-the-hook when something extraordinary happens. Something that makes it impossible to do the thing they thought they could do when they entered into the contract. The common thread is that of the unexpected. Something beyond regular human foresight and skill.

When reviewing your commercial lease agreement, you must look at the Force Majeure (“FM”) clause in the context of COVID-19 as it relates to your [in]ability to continue operating your business.  Thousands of commercial tenants are now confronted by huge cash flows issues with revenue ground to a halt and ongoing liabilities (including lease payments) that they are unable to fund. As a result, one of the options for these tenants may be to invoke the FM clause in their commercial lease agreement. 

It important to review the specific language of the FM clause in your commercial lease agreement. Some FM clauses say that such a scenario only applies if “performance of obligations under the contract becomes impossible.”  That means it is not physically possible for the party to do the thing that was set out to do when the contract was entered.   The impact of COVID-19 on your specific business is a key consideration to determine whether it makes continued operation impossible (i.e., schools, restaurants, and other non-essential business that are subject to mandatory government closure) or more difficult to perform but still possible to operate. Can the tenant and its employees still gain access to their premises to retrieve files and/or laptops in the event access to the building is restricted?

You must consider what types of events will trigger a FM based on the wording of the lease. Some contracts may be silent on this.  Others will be specific – naming specific events that constitute FM (e.g. flood, strike, fire, or ‘Act of G-d,’ etc.).  The unifying thread of an ‘Act of G-d’ is an uncontrollable event that was not foreseen at the time the contract was entered into.  When the contract was negotiated may be critical. For instance, some contracts may expressly stipulate “pandemics” in FM clauses. Especially those that were negotiated around the time of the SARS virus. 

The determination as to whether COVID-19 is considered an FM event is based on how that term is defined in your contract. 

In many cases, parties to a contract could reasonably argue that they could not foresee the pandemic at this scale occurring at the time the contract was entered into.   On the other hand, just because it is more economically difficult for the party to perform the agreement, the simple fact that the event has caused a constraint on profitability, it may not be enough to trigger the FM clause.

If it is Physically Possible To Continue To Operate My Business But It Will Be Extremely Costly – What Are My Choices?

Do I have to pay my contractual obligations or just pay damages for breach of contract?  There is a well-recognized ability in the case law that it may be more economical for a party to an agreement to cease performing an agreement and breach the contract, rather than continue performing and lose money – this is often referred to as an ‘efficient breach.’   The counter-party in the breach of contract can be made whole, whereas the breaching party will minimize its losses by ending the contract at that time.

A key consideration is if a party breaches a contract with another party – that may impact the counter-parties ability to perform its other contractual relationships, which could lead to a cascade of breached contracts with third-parties.  Those other parties could potentially bring a claim against the initial breaching party based on tort law principles.  

Whatever industry you operate in, your company must consider how they will continue their business in the face of COVID-19.  Parties should take into account commercial leasing considerations and review their leases to determine what rights and obligations they have in light of COVID-19.

What Happens If You Do Not Have an FM Clause in Your Contract? Frustration of Contract

You may be able to rely on the doctrine of frustration of contract. Frustration is the occurrence of an unforeseen event that causes a radical change in performance of contract. This radical change makes performance under existing circumstances impossible, impractical or frustrates the original purpose of the agreement. The onus would be on the party alleging frustration of the contract to prove these elements.

According to the Supreme Court case Naylor Group Inc. v Ellis-Don Construction Ltd., the doctrine is applied where, “a situation has arisen for which the parties made no provision in the contract and the performance of the contract becomes ‘a thing radically different from that which was undertaken by the contract.’ The result of a successful frustration claim is that the contract is deemed frustrated and all obligations are extinguished as of the date of the supervening event.

If you have any questions with respect to your commercial lease and your rights and obligations in the face of COVID-19, it is important that you speak with qualified legal counsel to discuss the same. 

Temporary Lay-Offs due to COVID. Employer & Employee Rights and Obligations

Where an employer changes a fundamental term of employment, this may constitute constructive dismissal. It is difficult to imagine a more fundamental term of employment than that the employee be paid his or her salary. Since COVID-19 has resulted in significant business closures, many employees have been temporarily laid-off and are no longer being paid their salary.

Typically, where no agreement (employment contract) exists that expressly indicates that the employer was entitled to layoff the employee for any period of time, the employer cannot simply place an employee’s employment status on hold without pay and without substantial benefits and expect that this will not constitute constructive dismissal. If the demotion of an employee or a reduction in pay and responsibilities of an employee constitute constructive dismissal, then surely indefinite suspension with no guarantee of recall, no salary and virtually no benefits must also qualify for the same treatment at law.

In its clear and plain wording, the Employment Standards Act (ESA) allows for temporary layoffs and an employee is not terminated (for the purpose of the statute) until and unless his or her temporary layoff exceeds the time frames allowed by s. 56(2), prior to which time he or she is not entitled to termination or severance pay pursuant to O.Reg 288/01. If the layoff does exceed the timelines, then the employee has been terminated.

That said, the temporary layoff provisions of the ESA operate separately from an employees common law rights. The ESA provisions are intended to provide protection to employees in situations where layoffs are otherwise permitted as an express term of the employment contract by limiting temporary layoffs to the maximum time periods stated in the ESA.

“Temporary layoff” is a defined term[8] in the ESA, as follows:

A layoff of more than 13 weeks in any period of 20 consecutive weeks, if the layoff is less than 35 weeks in any period of 52 consecutive weeks and,

                                       i.              the employee continues to receive substantial payments from the employer;

                                    ii.              the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan;

                                   iii.              the employee receives supplementary unemployment benefits; and

                                   iv.              the employee is employed elsewhere during the layoff and would be entitled to receive supplementary unemployment benefits if that were not so,

Section 56(4) allows an employer to layoff an employee without specifying a recall date without being considered to have terminated the employment unless the period of layoff exceeds that of a temporary layoff.

Section 56(1)(c) provides that an employer terminates the employment if it lays the employee off for a period longer than the period of a temporary layoff.

Section 54 provides that no employer shall terminate the employment of an employee who has been continuously employed for three months or more absent written notice of termination under the act or having made appropriate payment in lieu of such notice.Section 56(1) provides that an employer terminates the employment of an employee for purposes of s.54 if:

a)         the employer dismisses the employee or otherwise refuses or is unable to continue employing him or her;

b)        the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period; or

c)         the employer lays the employee off for a period longer than the period of a temporary layoff.

 s. 56(1) of the ESA operates to terminate an employee’s employment in law, so that the employee may claim for common law wrongful dismissal damages. The evident purpose of s. 54 is to prevent employers from avoiding the liabilities that flow from terminating the employment of employees under the guise of placing them on indefinite layoff. The legislature has provided that when a layoff reaches 35 weeks in 52, the employee is terminated.

At common law, an employer has no right to layoff an employee. Absent an agreement to the contrary, a unilateral layoff by an employer is a substantial change in the employer’s employment, and would be a constructive dismissal.

More specifically, a proper reading of the ESA layoff provisions requires the conclusions that:

a.         it is not a termination of employment to temporarily lay off an employee so long as that temporary layoff does not exceed the definition of “temporary” – s.56(4);

b.         an employer may not contract below the Act and therefore may not contract for provisions that allow that temporary layoffs exceed the timeframe set out in s.56 of the Act;

c.         once a layoff exceeds the definition of temporary it is a termination of the employee’s employment pursuant to the Act and pursuant to the common-law, as the Act no longer protects the employer by displacing the common-law jurisprudence and the Act itself also deems a termination; and

d.        the common-law doctrine of constructive dismissal is suspended until such time as the layoff exceeds the definition of  “temporary” in the Act.

TAKEAWAYS

  • Always seek legal advice before deciding to temporarily layoff an employee.
  • Review any relevant contracts or documents pertaining to the employee you are considering laying off before doing so.
  • If there is no contractual right to temporarily layoff the employee, consider speaking with the employee beforehand and document in writing any agreements made.
  • If you are considering being temporarily laid off, or have been laid off by your employer, be aware of the maximum time period a lay off can last under the Employment Standards Act, and what obligations the employer has to you during the layoff itself.

If I Am Subject to Temporary Lay-Off Due To Coronavirus, Am I Entitled to Severance Pay?

The coronavirus (COVID-19) has resulted in business closures and downsizing, in some cases temporary and others on a permanent basis. The Employment Standards Act in Ontario expressly enumerates in s.56(2) the requirements for a temporary lay-off to occur. Specifically, the criteria include the following:

A temporary layoff is,

(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks;

(b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,

(i) the employee continues to receive substantial payments from the employer,

(ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,

(iii) the employee receives supplementary unemployment benefits,

(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,

(v) the employer recalls the employee within the time approved by the Director, or

(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

(c) in the case of an employee represented by a trade union, a lay-off longer than a lay-off described in clause (b) where the employer recalls the employee within the time set out in an agreement between the employer and the trade union.  2000, c. 41, s. 56 (2); 2001, c. 9, Sched. I, s. 1 (12).

Generally, the common law in Ontario has held that a temporary lay-off is not permitted in Ontario unless it is expressly authorized in a employee’s employment contract and the employer follows the specific requirements outlined above. At this time, the Courts have not rendered a decision on whether a temporary lay-off constitutes a constructive dismissal (i.e., termination of employment) absent an express term of an employment contract permitting such a lay-off, which has been the law to-date.

Rather, it is probable that a Court may find that an economically required lay-off is not deemed to be a termination of employment because of the unique financial circumstances and constraints that have been posed by the virus. Nevertheless, each case is fact-dependent, and it is best to consult with an employment lawyer to discuss the potential outcomes should you pursue a claim for constructive dismissal.