Severance Pay and the Older Worker: Negotiated Versus Litigated Outcomes Under Canadian Common Law

  • Kenneth Wm. Thornicroft


The North American workforce is aging and workers are increasingly working beyond normal retirement age. Although mandatory retirement has largely been abandoned in Canada, employers still have the common law right to terminate employees without just cause by giving reasonable notice of dismissal. Where no, or insufficient, notice is given, the dismissed employee can file a civil action for wrongful dismissal. This article examines whether older workers are treated differently relative to younger workers in the assessment of reasonable notice. This question is examined in both an experimental negotiation simulation and by a statistical analysis of all Canadian appellate court decisions addressing reasonable notice issued during the 12-year period from 2000 to 2011.