In Shynkarova v. 2554318 Ontario Ltd. o/a Tax Mechanic,[i] the Ontario Super Court of Justice considered a termination that occurred just days before the employee was to reach a legally-significant milestone under the Employment Standards Act (ESA),[ii] while also examining the employer’s conduct during and after the termination.
In this post, the employment litigation lawyers at Walker Law will review how this case illustrates that conduct around termination, including its timing, can impact the compensation an employee is legally entitled to receive, particularly where it worsens an employee’s position after termination.
The Facts of the Case and the Court’s Analysis
The employee worked in a creative marketing role for an online tax consultancy. Her employment duties included managing social media pages and creating online content. The employee earned a base salary of $60,000 per year and was employed for just under one year.
One factor to consider in this case was the timing of dismissal. The employer terminated employment nine days before the employee’s one-year anniversary. As the employer terminated the employee’s employment before one year of service, the employee was only entitled to one week of notice or pay in lieu of notice under the Ontario Employment Standards Act, 2000 (“ESA”). This was instead of two weeks if the employer had terminated the employee just nine days later.
Under the ESA, an employee who has worked less than one year is entitled only to one-weeks’ notice (or pay in lieu) before termination, whereas an employee who has completed at least one year of work is entitled to two-weeks’ notice (or pay in lieu) before termination.[iii]
The employee’s dismissal was sudden and the employer provided no support for the employee’s transition. The employer did not provide a letter of reference and withheld wages, the latter of which is in contravention of the ESA. This caused immediate financial stress for the employee and forced her to take lower-paying work to make ends meet.
The employer’s conduct did not improve after termination. The employer failed to meaningfully participate in the litigation, sought numerous adjournments and did not retain counsel. The court expressly stated that the employer abused its procedural rights. This litigation conduct would later prove to be far more costly than the termination itself.
ESA Minimums and Common-Law Notice
The employment agreement failed to oust the employee’s common-law rights and, as such, did not limit her entitlements on termination to the minimum standards set out in the ESA. In these circumstances, the court was required to assess reasonable notice at common law.
In doing so, the court considered factors such as the employee’s length of service, age, type of job, and the availability of similar work (known as Bardal factors).
Based on those factors, the court found that the employee was entitled to three months’ of pay in lieu of notice as damages. That amount was based on the employee’s young age and relatively short length of service, which warranted a shorter period, and the lack of similar work and poor economic state post-COVID, which warranted a longer period.[iv]
But the analysis did not stop there. The court drew an inference from the timing of the dismissal, finding that the employer likely terminated the employee just before the one-year anniversary of her employment to avoid paying an additional week of notice.
Why the Timing of Dismissal Mattered
Importantly, the court did not treat the termination timing as a basis to punish the employer. No moral or punitive damages were awarded, and the court was explicit that the employer’s conduct did not rise to that level. Instead, the timing mattered because of the practical impact it had on the employee’s ability to transition to a new job.[v]
The court found that terminating the employee just days before the ESA threshold for an additional week of pay likely demoralized her and impeded her job search. The loss of income, absence of transition support, and withheld wages combined to place the employee in a difficult financial position. This situation forced her to take lower-paying work simply to make ends meet.[vi]
In the court’s view, these circumstances likely set the employee back in the job market by at least one month which affected the employee’s Bardal factor of availability of alternative employment. To address that impact, the court increased the award of pay in lieu of notice from three months to four months.
It is important to keep in mind that it was the impact of the timing of termination that mattered to the court. The court did not state that timing alone, with no practical consequences, would justify increased termination pay. Nevertheless, the case stands as a reminder that strategically-timed terminations can backfire where they meaningfully worsen an employee’s post-termination position.
Procedural Conduct and “Hardball” Litigation
This case shows the court’s view of improper employer conduct during and post-termination.
Employment relationships engage issues of livelihood and financial security. As a result, courts have long held that employers are subject to heightened scrutiny where their conduct (including procedural conduct) exacerbates the financial vulnerability of a dismissed employee. Employers are not permitted to “play hardball” by using delay, default, or procedural gamesmanship to wear down former employees.[vii]
That principle extended to this case. The employer’s failure to participate meaningfully in the proceeding, repeated adjournment requests, and ultimate default caused the employee to suffer delays and needless expense while trying to secure her rightful income under common law. The court treated this conduct seriously.
$32,000 in Costs Awarded
As a result of the employer’s procedural abuse, the court awarded approximately $32,000 in substantial indemnity costs against the employer. Notably, that costs award exceeded the damages awarded for pay in lieu of notice.
Lessons for Employers and Employees
The Shynkarova decision shows that courts will look beyond technical compliance and consider fairness, impact, and conduct when determining an employee’s entitlements.
For employers, the takeaway is twofold: terminating close to a legally-significant milestone should be approached carefully and with legal advice. Just as importantly, employers must conduct themselves responsibly after termination. Procedural abuse or “hardball” tactics can lead to costs consequences that far exceed the underlying claim.
For employees, the case is a reminder that courts recognize the real economic impact of job loss. Where an employer’s conduct, before and throughout the termination process, unfairly worsens an employee’s position, courts have tools to address that imbalance.
Whether you are an employer making a termination decision or an employee assessing your dismissal, early legal advice can help clarify your rights and obligations. The employment litigation lawyers at Walker Law regularly assist both employers and employees in navigating termination issues and wrongful dismissal claims.
Tags: Employment Litigation Law, Civil Litigation Law
[i] Shynkarova v. 2554318 Ontario Ltd. O/a Tax Mechanic, 2025 ONSC 6478 [Shynkarova].
[ii] Employment Standards Act, 2000, S.O. 2000, c. 41.
[iii] Ibid at section 57.
[iv] Shynkarova at Para. 12.
[v] Shynkarova at Para. 15.
[vi] Shynkarova at Para. 15.
[vii] Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 SCR 701 at p. 704.