REAL PLEADINGS: MOL Sued for Failing to Inform Employee of Contractual Rights

The Ontario Ministry of Labour offers a service called Employment Standards Information Centre that provides telephone advise to workers who have questions about their entitlements under the Employment Standards Act.   Imagine this scenario:

A long term employee is terminated, and according to his employment contract, is entitled to ‘reasonable notice’.  For someone in a management position with over 20 years’ service, this period of notice will be in the outer high range courts order, which is up in the vicinity of 24 months.  The ESA lists minimum entitlements at the point of termination, and says that this employee would be entitled to at least 8 week’s notice, a small fraction of what the employee’s contract requires.  Yet all the employer gives the employee is this statutory minimum.  The employee calls the MOL info centre to ask about the employer’s provision of only 8 week’s notice, and is told by an MOL advisor that the ESA only entitles him to the 8 weeks, so everything is fine.  Unhappy that the law gives him so little protection, he walks away with the 8 weeks.  He’s never asked to sign a release.

Does the Employee have a legal basis to sue the MOL for not pointing out that the employer was clearly violating his contract by providing him with far less notice than he is contractually entitled?
These are the facts alleged in an interesting lawsuit filed recently in Ontario.  So far, we only have the employee’s side of the story.  For this post, we’ll just assume the allegations are all true and provable.  The case is called Mosey v. Ministry of Labour.  [An additional lawsuit with similar facts and allegations was filed simultaneously].  This is the latest instalment of Read Pleadings.
Check out the statement of claim here.
It’s an interesting read.  The lawsuit is framed in tort law, and in particular negligence.  It seeks damages for the lost wages the plaintiff would have been entitled to under his contract, had proper reasonable notice been given.  The employer has since gone out of business, so the only chance of recovery is through the MOL.
Discussion
I love this case, because it touches on a series of issues I’ve often addressed on this blog relating to the relationship between statutory notice and contractual notice.  For my employment law students, a quick review:  For at least a century, when an employment contract is silent on how much notice of termination must be given, courts in Canada have implied a term requiring ‘reasonable notice’.  How much notice is reasonable is up to the courts, who apply certain well-known criteria, including most importantly length of service, type of job, age of the employee, and prospects for the employee finding other work.  An employee and employer won’t know for sure what a court will order at the time of the dismissal, but lawyers are able to estimate pretty closely what range the court will fall within.  The employee in this case is asking for 24 month’s notice, which is at the upper end, but certainly in the ballpark of what a court would order for an employee like this.
The ESA, on the other hand, says only what the absolute minimum amount of notice must be in Ontario.  It maxes out at 8 weeks for any employee with service beyond 8 years.  It is beyond doubt that the employee in the lawsuit was contractually entitled to WAY MORE notice than the statutory minimum.  Some employers just ignore the contractual requirement, and give the statutory minimum.  In recent years, courts have been unimpressed with this practice.  ( See, e.g., Dechene v. Dr. Hhurrun Ashraf Dentistry and Brito v. Canac Kitchens (Echlin’s ancillary damages award was overturned, but on the basis that it wasn’t pleaded).  When an employer does this, they are counting on the employee not speaking to a lawyer and/or not bothering to sue to recover their contractual notice entitlement.
In the new lawsuit, the argument is that the MOL had a legal duty to advise the employee that the statutory minimum is just that, a minimum, and that the contract could (and in this case definitely would) require far more notice.  What do you think of that argument?
Keep in mind that Section 5(2) of the ESA says this:

(2)  If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.