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The Ontario Court of Appeal in McNevan v. AmeriCredit Corp. overturned a trial judgment that, among other things, awarded an employee a 6 month notice period plus a "Wallace" extension of 6 months.

This is an important case as it follows the approach taken by the Supreme Court of Canada decision in Honda Canada v. Keays, though was heard prior to the release of Keays (the Court asked for submissions from counsel following the release of Keays, though it was not necessary for the Court to consider these in light of the conclusions that it reached on the record).

The Court was critical of the trial judge's consideration of "extended" Bardal factors in arriving at the applicable period of reasonable notice.

The Court emphasized that it was generally reluctant to interfere with the trial judge's assessment of the period of reasonable notice (relying on the "more art than science" quote from Minnott), but that it will do so where, in its judgment, is outside an acceptable range or where the trial judge erred in principle or made an unreasonable finding of fact. 

In this case, the trial judge, in arriving at a 6 month notice period, relied on  a purported failure on the company to warn the employee  about dissatisfaction in his job performance and then by taking this into account in determining the notice period. The Court said that this was not proper (which is consistent with the decision of Mr. Justice Bastarache in Keays where he was critical of the trial judge's consideration of Honda's "flat management structure" and Keays' place in the hierarchy in determining the notice period.  What is relevant is what the employee does, not extraneous factors that do not inform that).

While finding that this was not a proper consideration, the Court of Appeal, nonetheless upheld the trial judgment on notice because, while generous, was not outside the reasonable range.

With respect to the Wallace extension (recognizing that the Supreme Court in Keays largely blew the Wallace methodology away), the Court  found that the trial judge's consideration of the employer's failure to warn the employee of performance issues in extending the notice period on the basis of Wallace was not correct.  The Court also found that the following were not proper factors upon which to find "bad faith":

The Court had the following to say:

The trial judge also relied on the employer's post-employment conduct in relation to the employee's personal property (it packed them up and shipped them and "unfortunately, in the process, a glass candy jar broke and an ice tea can punctured, causing damage to some photographs") and some delays in dealing with payment of  vacation pay, the delivery of his T4 and Record of Employment and the refund of deductions on the employee's paycheque in extending the notice period under Wallace. 

The Court held that "there is no evidence that the company was unduly insensitive in the manner in which it dealt with" these matters.  The Court also was suspect of the judge's approach of splitting the Wallace analysis into two parts.

Another important case from our Court of Appeal. 

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