BC Courts continue to accept “common sense” view of age and reasonable notice

It is a well-established principle of employment law that older employees, generally speaking, are entitled to more reasonable notice (or pay in lieu) than younger employees. But what is the reason for this? After all, one could make the argument that older, more experienced workers are more valuable to an employer. Why should an older employee be entitled to, as a rule, more notice than a similarly situated younger employee?

Courts have justified the distinction with the following reasoning: the general purpose of reasonable notice is to give the employee “a fair opportunity to obtain re-employment instead of being thrown suddenly and unexpectedly upon the world”. It is a matter of “common sense” that older employees are less marketable and less desirable hires compared to a similarly situated younger employee and therefore will take longer to find comparable work. This “common sense” judgment has real world impacts: one study showed that “dismissed employees who were at least 50 years old, and independent of tenure, recovered about 3 months’ additional notice by reason of their older age”.[1] This additional notice, at the macro level, has some justification as generally speaking the data supports the idea that older workers do not re-enter the workforce at the same rate as younger workers.

In 2012, a decision of the Supreme Court of British Columbia tentatively challenged this orthodoxy. In Matusiak v. IBM Ltd., the Court was urged to view the impact of age from a “modern perspective” and no longer assume that age will be a detrimental factor on a person’s job search. In that case, the defendant pointed out that mandatory retirement has largely been eliminated and that, among other things, justifies a re-examination of how age is factored into determining the length of proper notice. The Court acknowledged a modern approach was appropriate, and noted that at the end of the day, the court makes an evidentiary based enquiry on a case-by-case basis. The Court still noted that the traditional judicial approach that views age as a detrimental factor should not be “completely discarded”.

Several decisions favourably cited this modern approach in the years that followed, asking plaintiff’s to put forward evidence that supported the idea that this particular plaintiff, at the individual level, needed a longer notice period because of their age. The judicial notice taken of the “common sense” effect of age was not completely discarded, however.

But even more recently, the language of the modern evidence-based approach seems to fallen out of favour. In Kerr v. Arpac Storage Systems Corporation, 2018 BCSC 704, the Court accepted without much discussion that after a certain age, it becomes progressively more difficult for an older employee to obtain new employment, and made an award with age in mind. While that presumption could be rebutted, it appears that the older, “common sense” view of age is prevailing and older workers, as a rule, can generally expect a higher notice award.

The bottom line is that despite the fact that the question of reasonable notice is always assessed on a case-by-case basis, courts appear willing to take near automatic judicial notice of the broader societal challenges older workers face. In other words, the “age-bump” may be here to stay.