... I spoke earlier about the Plaintiff's age. As Brenner J. said, at para. 39 in Carlysle-Smith, above, "[i]f an employee has not taken reasonable steps, but if the court is satisfied that even if such steps were taken that it is unlikely that such alternative employment would have been achieved, then presumably little or no reduction in the notice period would be appropriate." In my view, the fact that Mr. Dodge is 60 means that it was less likely that alternative employment would have been achieved. It is only for that reason that I have not reduced more substantially the applicable notice period.
Of particular importance in the circumstances of this case is the fact that the plaintiff was 16.8 months from achieving full pension entitlement. This doesn’t mean that the plaintiff had to retire in 16.8 months but rather that upon the expiration of that period of time he would be entitled to receive an unreduced pension. Time to retirement is an obvious consideration when long-term employees are dismissed due to restructuring. In such circumstances it is also common that the employer does not have an expectation of mitigation because the bridging period ... may be less than the notice period that would otherwise be applicable.
There is no reasonable doubt that the plaintiff would be entitled to at least seventeen months’ notice (subject to mitigation considerations) regardless of the subtle distinctions urged by the defendant respecting the character of the plaintiff’s employment.
In the result, the Court awarded the plaintiff pay in lieu of the bridging period of 16.8 months' pay, $65,000 for the value of an actuarially unreduced pension, 30 weeks' pay as a retiring allowance, pre- and post-judgment interest, and legal costs of almost $53,000.
Where an employer terminates the employment of a long-service employee who would become eligible for an unreduced pension within the reasonable notice period, the employer should seriously consider bridging the employee to retirement age, or risk becoming liable for the loss that flows from providing a reduced pension.
If the dismissed employee has no intention to look for work, but has instead decided to retire, the very purpose for which reasonable notice is required to be given is absent. That is a factor that may well be relevant in assessing what constitutes reasonable notice in this case.