In Ontario, if an employer has a payroll of $2.5 million or
more, they are required to provide an employee who has been
terminated from employment without cause with statutory severance
pay pursuant to Section 64 of the Employment Standards Act,
2000 (the "ESA"), provided the employee has five or
more years of service at the date of termination. In Hawkes v.
Max Aicher (North America) Limited, 2021 ONSC 4290 (Canlii) ("Max
Aicher"), the Divisional Court held that the calculation of
payroll is not limited to an employer's Ontario payroll, but
must include the payroll of related companies outside of Ontario,
including outside of Canada.
This decision overturns the Ontario Labour Relations Board's
("OLRB") decision, Doug Hawkes v. Max Aicher (North
America) Limited, 2018 CanLII
125999 (ON LRB), following its judicial review, and arguably
provides clearer direction to employers on this issue.
