My Mom Is 64, Has 10 Years In, and Has Been Laid Off 15 Weeks. Her Employer Refuses to Terminate Her. What Now?

One quick threshold check before anything else. Everything below assumes she is a provincially regulated, non-union Ontario employee. If she works for a bank, airline, railway, telecom, interprovincial trucking company or another federal undertaking, the ESA does not apply to her at all and the Canada Labour Code governs instead (see federally regulated employee rights). If she is unionized, her recall rights live in the collective agreement, not in a lawsuit. Both scenarios are covered further down.

At 15 weeks, is this still a 'temporary layoff' under the ESA?

Almost certainly not. ESA s. 56(2)(a) defines a temporary layoff as 'a lay-off of not more than 13 weeks in any period of 20 consecutive weeks.' Fifteen consecutive weeks blows through that. The only way a 15-week layoff stays 'temporary' is if it falls inside s. 56(2)(b), which extends the window to under 35 weeks in 52, but only if one of six specific conditions is met.

Those six conditions are alternatives, so the employer only needs one. Here they are, with the practical question to ask about each:

• s. 56(2)(b)(i), 'the employee continues to receive substantial payments from the employer.' If she has received nothing since the layoff started, this fails immediately. Token amounts are not substantial payments.
• s. 56(2)(b)(ii), 'the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan.' This is the one that most often saves an employer. Check her benefit card, her drug plan, her pension statement and her pay stubs. If health and dental coverage were cut off when the layoff started, this limb fails.
• s. 56(2)(b)(iii), 'the employee receives supplementary unemployment benefits.' This means an actual registered SUB plan topping up her EI. Almost no small employer has one. Regular EI on its own is not a SUB benefit.
• s. 56(2)(b)(iv), 'the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so.' This limb still requires a SUB plan to exist. If there is no plan, working elsewhere does not help the employer.
• s. 56(2)(b)(v), 'the employer recalls the employee within the time approved by the Director.' This requires the employer to have gone to the Director of Employment Standards and obtained an approval, and then to actually recall her within it. Ask for the approval in writing.
• s. 56(2)(b)(vi), 'in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee.' Note the two requirements: there must be an agreement fixing a recall time, and the employer must actually recall her inside it. A vague verbal 'we'll call you when things pick up' is not an agreement, and a promise that is never honoured does not satisfy the limb.

The remaining limbs do not apply to her. Section 56(2)(c) covers only 'an employee represented by a trade union' with a recall time in the collective agreement. Section 56(2)(d) covers non-union layoffs of 35 or more weeks in 52, and it requires both a recall time in an employer-employee agreement and 'an approval for an extended lay-off from the Director under subsection 66.1 (6).' She is nowhere near 35 weeks, and an employer that is refusing to terminate has almost certainly not obtained a Director's approval.

How the weeks are counted matters too. Under s. 56(3.1), if she has a regular work week she is 'laid off for a week' if 'in that week, the employee earns less than one-half the amount he or she would earn at his or her regular rate in a regular work week' and the week is not an excluded week. An 'excluded week' is defined in s. 56(3) as a week during which, for one or more days, she 'is not able to work, is not available for work, is subject to a disciplinary suspension or is not provided with work because of a strike or lock-out.' So if she was sick or away for a day during the layoff, that week comes out of the 13 count, but s. 56(3.2) says it still counts inside the 20-week period. At 15 straight weeks she has room for a week or two of that and is still over the line. If she does not have a regular work week (variable hours, commission, seasonal), s. 56(3.3) applies the same idea against the average of the 12 consecutive weeks before the 20-week period.

If the layoff is too long, when is she legally terminated?

On the first day of the layoff, roughly 15 weeks ago. ESA s. 56(1)(c) says an employer terminates the employment of an employee if 'the employer lays the employee off for a period longer than the period of a temporary lay-off.' Section 56(5) then says: 'If an employer terminates the employment of an employee under clause (1) (c), the employment shall be deemed to be terminated on the first day of the lay-off.'

That backdating is not a technicality, it is the whole answer to her employer's position. The company is behaving as though nothing has happened because it has not sent a letter. The statute says the termination already happened, months ago, and it happened by operation of law on day one.

The 'we never gave her a return date, so she is still employed' argument fails for the same reason. Section 56(4) provides that 'an employer who lays an employee off without specifying a recall date shall not be considered to terminate the employment of the employee, unless the period of the lay-off exceeds that of a temporary lay-off.' Read the exception. No recall date buys the employer 13 weeks of cover and not one week more. Once week 14 arrives, s. 56(4) stops protecting the employer and s. 56(1)(c) takes over. Our fuller explainer on your rights when laid off in Ontario walks the same sequence.

Can the employer just refuse to terminate her and refuse to pay?

No. Nothing in ss. 56, 57, 61, 63, 64 or 65 conditions any entitlement on the employer agreeing that a termination occurred. Termination under s. 56(1)(c) is triggered by elapsed time, not by a letter, a Record of Employment or an HR decision. The employer's refusal changes only one thing: it means she has to enforce the entitlement rather than be handed it.

There is usually a reason for the stalling, and it is worth naming so she is not confused by it. Common ones: the company hopes she will find another job and quietly disappear, so it never has to write the cheque; it wants to run the clock toward her 65th birthday and reframe this as a retirement; it is short on cash and severance is a large single payment; or someone in HR sincerely but wrongly believes that 'temporary layoff' means indefinite. None of these are legal defences.

One thing she should not do is help them. If anyone asks her to sign a retirement letter, a resignation, a 'mutual separation,' or a recall agreement that fixes a new return date, she should not sign it before getting advice. Signing a resignation or retirement can convert a claim worth many months into nothing, and a fresh recall agreement can hand the employer the s. 56(2)(b)(vi) limb it currently does not have. See retiring versus resigning and severance and should you sign a severance offer.

What does the ESA actually owe her at ten years of service?

Two separate things: termination pay and severance pay. At ten years, ESA s. 57(h) requires 'at least eight weeks' notice, because her 'period of employment is eight years or more.' Since no notice was given, s. 61(1)(a) lets the employer discharge that by paying 'termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given,' which is eight weeks of wages. Severance pay is a second, separate entitlement of roughly ten weeks.

Section 61(1)(b) adds an obligation people constantly forget: the employer must also continue 'whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice.' At 64, with the drug and dental coverage that goes with a ten-year job, that is not a small item. Section 61(1.1) adjusts the calculation if she has no regular work week or is paid on a basis other than time, by using the 12-week period immediately preceding the day of termination.

On the arithmetic: s. 65(1) multiplies her regular weekly wages by 'the number of years of employment the employee has completed' plus 'the number of months of employment not included in clause (a) that the employee has completed, divided by 12.' Ten completed years gives ten weeks. Section 65(4) then adds the notice period that was never given, and eight weeks adds one completed month, so about 10.08 weeks. Section 65(2) is helpful for her: 'all time spent by the employee in the employer's employ, whether or not continuous and whether or not active, shall be included.' Her 15 laid-off weeks are still time in the employ, and any earlier stint with the same employer counts too. Section 65(6) covers her if she has no regular work week, averaging the 12 weeks before severance, or before the layoff began where severance arises under s. 63(1)(c) or (d).

Section 65(8) is worth reading closely, because employers try to shave severance with deductions the statute does not allow. Only three are permitted: supplementary unemployment benefits received after severance and before the severance pay becomes payable; 'an amount paid to an employee for loss of employment under a provision of the employment contract if it is based upon length of employment, length of service or seniority'; and severance already paid under the Act or a predecessor. EI is not on that list. Neither is money she earns from a new job. The difference between the two entitlements is explained further in termination pay versus severance pay.

Does she actually qualify for ESA severance pay, or does she have to wait until week 35?

She qualifies now if the employer's employment relationship with her has been severed under s. 63(1)(a) or (b), and she does not have to sit out 35 weeks to get there. The 35-week route in s. 63(1)(c) is one trigger among five, not a waiting period she must serve. But s. 64 eligibility is a separate hurdle, and it is the one that decides whether ESA severance is owed at all.

Take s. 63(1) limb by limb. Paragraph (a) covers where 'the employer dismisses the employee or otherwise refuses or is unable to continue employing the employee.' An employer that has provided no work for 15 weeks, offers no return date and will not commit to one is arguably refusing or unable to continue employing her. Paragraph (b) covers constructive dismissal where 'the employee resigns from his or her employment in response within a reasonable period,' which is the cleanest route but requires her to actually take the step. Paragraph (c) is the 35-weeks-in-52 route, which she has not reached. Paragraph (d) severs immediately where 'the employer lays the employee off because of a permanent discontinuance of all of the employer's business at an establishment,' so if her location has quietly closed for good, severance is triggered today with no 35-week wait. Paragraph (e) is about resigning during a statutory notice period and does not apply.

Note a counting trap. For severance under s. 63(1)(c), s. 63(2.1) says a week counts only if 'the employee earns less than one-quarter the amount he or she would earn at his or her regular rate in a regular work week.' That is a different and harder threshold than the one-half test in s. 56(3.1) used for termination. An employer that hands her a few shifts each week could keep her earning above a quarter of normal, stalling the severance clock while the termination clock has already run out. Section 63(2.2) confirms excluded weeks still count inside the 52-week period, and ss. 63(2.3) and (2.4) apply parallel rules where she has no regular work week.

Then s. 64. She clears the service requirement easily, since s. 64(1) requires that 'the employee was employed by the employer for five years or more.' After that she needs one of two things. Section 64(1)(a) requires a permanent discontinuance of all or part of the business at an establishment plus 50 or more employees severed within six months, which usually will not apply to a single individual layoff. Section 64(1)(b) requires that 'the employer has a payroll of $2.5 million or more,' measured either by s. 64(2)(a), the total wages of all employees in the four weeks ending with the last completed pay period before severance multiplied by 13, or by s. 64(2)(b), total wages in the employer's last or second-last fiscal year. Either test suffices. Section 64(3) excludes prescribed employees identified by regulation, and s. 64(4) deems a location to be an establishment in multi-location closures. If the employer is genuinely small and under the payroll threshold, ESA severance is not owed, but her termination pay under s. 57(h) still is, and so is her common law claim.

Can she sue for real severance instead of the ESA minimum?

Yes, and this is where the money is. The ESA sets a floor of roughly 18 weeks in her case. At common law, an employer has no implied right to impose an unpaid layoff. Unless her written contract expressly permits layoffs, or a layoff practice was so well established that she agreed to it, sending her home without pay is a unilateral change to a fundamental term of the contract and is a constructive dismissal from the outset.

Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 sets out the two branches of constructive dismissal: a single unilateral change that substantially alters an essential term, or a course of conduct showing the employer no longer intends to be bound. An indefinite unpaid layoff sits squarely in the first. The test is objective, as Farber v. Royal Trust Co., [1997] 1 SCR 846 confirms, so the employer's good intentions and its hope that work returns are beside the point. Wronko v. Western Inventory Service Ltd., 2008 ONCA 327 describes the options when an employer unilaterally changes a fundamental term: accept it, reject it and sue, or make clear the change is rejected while the employer decides what to do. She needs to pick one deliberately, in writing, rather than drift. More on this in temporary layoff and constructive dismissal and constructive dismissal in Ontario.

The second thing worth checking is her written contract, if there is one. If it contains a termination clause that purports to cap her at the ESA minimum, that clause has to be flawless to work. Waksdale v. Swegon North America Inc., 2020 ONCA 391 holds that if any limb of the termination provisions offends the ESA, the whole termination scheme falls, even if the employer is relying on a different limb. Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 986 then supplies the consequence: when the clause fails, the common law presumption of reasonable notice revives. Dufault v. Ignace (Township), 2024 ONSC 1029 at paras. 19 to 22 illustrates the level of scrutiny these clauses attract, though the specific 'at any time' point in that case should not be treated as settled appellate law. See is my termination clause enforceable.

Does her age (64) change what she is owed?

It increases what she is owed, and it may add a second claim. Age is one of the core factors from Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC): the character of the employment, length of service, age, and the availability of similar employment given her experience, training and qualifications. A 64-year-old re-entering the job market faces a materially longer search than a 34-year-old, and Ontario courts recognize that.

Ontario appellate decisions have repeatedly upheld notice periods at or near the top of the range for older, long-service employees, including Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, Currie v. Nylene Canada Inc., 2022 ONCA 209, and Milwid v. IBM Canada Ltd., 2023 ONCA 702. Dawe also confirms that roughly 24 months functions as a soft ceiling, exceeded only in exceptional circumstances. Ten years of service will not put her at the ceiling, but her age and the difficulty of replacing a decade-long role at 64 pull her notice period well above the ESA's eight weeks. In practice, claims like hers are usually assessed in a range of many months rather than weeks, and the precise figure turns on her role, pay, and realistic job prospects. See severance for older employees and how much severance you are owed.

There is also a potential Human Rights Code claim. Code s. 5(1) guarantees 'a right to equal treatment with respect to employment without discrimination because of' a list of grounds that expressly includes age. Under Moore v. British Columbia (Education), 2012 SCC 61, she must show she has a protected characteristic, that she experienced an adverse impact, and that the characteristic was a factor in that impact. If younger employees were kept on or recalled while she sat at home, or if anyone made comments about her being 'close to retirement anyway,' that is evidence worth preserving. One important limit: the Code does not permit a civil action founded solely on a Code breach. Code damages have to ride inside another cause of action such as wrongful dismissal, or be pursued at the Human Rights Tribunal of Ontario. See age discrimination at work.

What happens if she just keeps waiting for the phone to ring?

Waiting is the single biggest risk in her file. Two clocks work against her. First, condonation: if she sits silently on an unpaid layoff for long enough, the employer will argue she accepted the change to her contract and gave up the right to treat it as a dismissal. Second, ESA s. 63(1)(b) requires that she resign 'in response within a reasonable period,' and s. 56(1)(b) uses the same language. A reasonable period is not indefinite.

The deadlines themselves are more generous but still finite. ESA s. 96(1) allows a person alleging a contravention to file a complaint with the Ministry 'in a written or electronic form approved by the Director'; s. 96(2) deems a complaint not filed if it is not in the approved form; and s. 96(3) deems a complaint not filed where the contravention 'occurred more than two years before the day on which the complaint was filed.' Since s. 56(5) backdates her termination to the first day of the layoff, that two-year window is running from about 15 weeks ago, not from some future date the employer picks. A civil claim is subject to the general two-year limitation period, also running from the dismissal. See limitation periods for wrongful dismissal and condonation.

A practical note on choosing a route. An ESA complaint and a civil claim are not cumulative for the same entitlement. The ESA requires an election between the two, and choosing one can shut off the other, so this is a decision to make with advice rather than by filling in an online form on a Sunday night. The civil route is also the only one that can deliver common law notice, which for her is the larger number.

Two more mechanical points. If the employer recalls her briefly and then lays her off again, watch the counting rules: under s. 56(3.1) a week only counts as a layoff week if she earns less than half her normal weekly wages, and under s. 63(2.1) the severance threshold is a stricter one quarter. A short recall can be used to disrupt those counts. And if she does get a genuine recall to her old job at her old pay, she should get advice before refusing it, because Evans v. Teamsters Local Union No. 31, 2008 SCC 20 can require an employee to mitigate by returning to work for the same employer where the relationship is not poisoned. Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 confirms that earnings from a substantially lesser job may not be deducted, so a stopgap job at lower pay is not necessarily a problem. More at the duty to mitigate and layoff recall rights.

What if she is unionized or works for a federally regulated employer?

Both change the answer completely. If she is in a union, her layoff and recall rights come from the collective agreement, and Weber v. Ontario Hydro, [1995] 2 SCR 929 gives labour arbitration exclusive jurisdiction over disputes arising from it. She cannot sue for wrongful dismissal, and the ESA complaint route is closed to unionized employees whose collective agreement is enforceable through arbitration. Her step is to file a grievance with her steward now, not later.

The statutory text reflects this split. Section 56(2)(c) deals with 'an employee represented by a trade union' recalled within the time set out in an agreement between the employer and the trade union, and s. 63(1)(c) uses the same 35-week measure for severance. See unionized employee fired rights.

If her employer is federally regulated, none of ss. 56 to 65 apply to her, because the ESA does not govern federal undertakings at all. The Canada Labour Code governs instead, and it has its own layoff, notice, severance and unjust dismissal machinery. Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 confirms that the Code's unjust dismissal regime displaces the ordinary common law approach of dismissal on notice for eligible non-managerial employees. Check the industry before assuming any of the numbers above apply, and see federally regulated employee rights.

How does EI fit into this, and what about her Record of Employment?

EI and severance are separate systems, and collecting EI does not reduce her ESA severance pay. Section 65(8) permits only three deductions from severance: supplementary unemployment benefits received after severance and before the severance pay becomes payable, contractual loss-of-employment payments based on length of employment, service or seniority, and severance previously paid. Regular EI benefits are not on that list.

What does matter is the Record of Employment. An ROE coded as a shortage of work layoff supports her EI claim, and it is also useful evidence that the employer characterized this as a layoff for lack of work rather than anything to do with her performance. She should get a copy and keep it. If severance is later paid, Service Canada will normally allocate it and may require repayment of overlapping benefits, which is a timing issue rather than a reduction in what she is owed. See Record of Employment and EI after job loss.

What should she do this week?

Move now, in writing, and stop waiting for a call that may never come. The immediate goals are to lock down the evidence that decides whether s. 56(2)(b) saves the employer, to put the employer to a deadline, and to avoid signing anything that converts a live claim into a resignation or retirement.

1. 1.Pull the documents: her employment contract or offer letter, any employee handbook layoff policy, the layoff letter or email, her ROE, her last several pay stubs, and her benefits card or insurer statements. The contract decides whether a layoff was ever permitted; the benefits records decide whether s. 56(2)(b)(ii) applies.
2. 2.Confirm in writing whether benefits are still being funded. A short email to HR asking 'are my group health, dental and pension contributions still being paid, and through what date?' is the single most valuable message she can send. Keep the reply.
3. 3.Ask, in writing, for a firm recall date and a copy of any recall agreement or Director's approval the employer is relying on. Silence or vagueness is itself useful evidence, because s. 56(2)(b)(v) and (vi) both require an actual recall inside a fixed time.
4. 4.Write down the layoff start date and count the weeks, flagging any week she was unavailable or unable to work, since those are excluded weeks under s. 56(3) that come out of the 13 but stay inside the 20.
5. 5.Do not sign a resignation, retirement letter, mutual separation, new recall agreement or release without advice. A release can extinguish everything, including benefit and disability entitlements.
6. 6.Keep her EI claim active and keep a simple job search log with dates, employers and outcomes, since mitigation efforts affect the value of a common law claim.
7. 7.Preserve anything suggesting age played a role: who else was laid off, who was kept or recalled, their approximate ages, and any comments about retirement.
8. 8.Get a review of the file before she takes a formal position, because whether she asserts constructive dismissal now, waits for the 35-week severance trigger in s. 63(1)(c), or files an ESA complaint are mutually constraining choices. Start with a free severance pay review.

About the Author

Amir Mirza

Founder & Employment Lawyer, Mirza Law

Amir Mirza is the founder of Mirza Law and an Ontario employment lawyer acting for employees. He is licensed by the Law Society of Ontario and is a member of the Ontario Trial Lawyers Association. He writes about severance, wrongful dismissal, and the rights Ontario employees have when their job ends.

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