# Got laid off today .... early retirement?!



## gibor365

During last 5-6 years, when out company got sold to Indian one, around 70% of employees got laid off and their positions were outsourced. Today was my day  . New that I gonna be laid off for a long time , like knew that soon we gonna have snow, but didn't know exact day 
To summarize, I worked for the company 13 years and 2 months, the company offered me lump sum (termination + severance) for 30 weeks (7 months) plus medical/dental benefit and HCSA ($1,000) also for 7 months.
If I don't sign letter , they will pay me 21.27 weeks (exactly Ontario minimumas per law) and all benefits will be stoped after 2 months.
Had conversation with other employees who got laid off earlier and went to lawyer for consultation ... the general opinion was that it doesn't make sense to go to court as company pays above minimum required.
In any case, tomorrow I scheduled appointment with some lawyer firm for initial consultation.
Curious if anybody actually went to court to negotiate better amount?

The problem that in my contract I have clause "_company will be entitled to terminate your employment, without cause, by providing you only with that minimum amount of notice of termination (or termination pay) and if applicable , severance pay, as may be required under the Employment Standard Act. You agree that upon receipt of the Severance payment, you will have no further entitlements ..._"
After several years ago I read this clause to another lawyer, he said that because of it, chances to get more are slim.


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## TomB19

I'm sorry, Gibor.

I've been there. Many of us have. Lots more to come.

Indians are taking a ton of jobs in Saskatchewan. I'm not talking about Indians immigrating. I'm talking about guest workers. Non-Canadians.

It is straight up traitorous by the current government in power, as well as the previous government which started it. They are killing us.

As best I can tell, they are doing it to curry favor with their owners (ie: corporations).

My brother got substantially more than that, when he was laid off. They told him a number, he told them no, and they doubled it. At least, that's what he told me.

I'd speak with a lawyer. Never take the company's word for it. Every time a company has given me legal advice, they have been way out of line. Every time.

The company was probably terrible to work for. It sounds like the typical top down place that mistakes mis-treatment of employees as alpha leadership. Hit the ground running. Start your own business, have a far better life, and never look back.

You have my very best wishes, Gibor.


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## Mukhang pera

Ontario appears to have rather generous employment standards legislation if it provides a 13-year employee with entitlement to 21 weeks' pay. In B.C. the max is 8 weeks, regardless of years of service.

Apart from your length of service, I know nothing about your age, education, nature of your employment, etc. The criteria courts use to determine "notice period" or severance pay in lieu are quite well established and were discussed in a somewhat recent B.C. case:

http://www.courts.gov.bc.ca/jdb-txt/SC/11/06/2011BCSC0681.htm

There, the court said, in part:

[46] Reasonable notice is determined by the circumstances of each particular case. The approach as set out in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J) at p. 145 remains an important guide:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

[47] Equally applicable is Ansari v. British Columbia Hydro and Power Authority (1986), 2 B.C.L.R. (2d) 33 (S.C.), McEachern, C.J.S.C. (as he then was) identified the following non-exhaustive factors:

(a) responsibility of the employment function;

(b) age;

(c) length of service; and

(d) availability of equivalent alternative employment.


I have cited the above case (url provided) because the employment contract there provided:

"In no event shall the Employer be liable on termination to give notice (or pay in lieu of notice) to the Employee in excess of the minimum requirements as set out in the Employment Standards Act as amended from time to time."

In that case, the employer was not allowed to rely on that term. Like you, the employee was a 13-year employee dismissed in 2008 from a job paying $52,000 per year. The facts say she was age 44 at hire in 1995. She was held entitled to damages based on a notice period of 18 months.

So it might be worth discussing with a lawyer who is up-to-date on employment law.


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## Mukhang pera

To further elaborate on the _Bardal_ and _Ansari_ factors, generally speaking, the higher the level of employment, the longer the notice or severance due. A key executive, or someone managing many lower-level workers, will get more than the guy who sweeps the floor. The older the employee, the longer the notice. Availability of employment can be significant. If you are on the young side, with skills much in demand and can easily get as good or better a job, the notice period will likely decrease. 


Here in B.C., the courts have set the "rough upper limit" for severance pay in wrongful dismissal cases at about 24 months.

As the case I cited points out, whether the contractual term limiting severance will be of any force is largely fact-driven, so a lawyer will have to review your employment history, when and what contracts were signed, what did the parties understand about those contracts, etc.

And last, whatever I say must be studiously ignored. As Carverman will tell you, I am a pretend lawyer, and my verbiage here should be viewed as no more than a sham, a fraud, a mask which I hold before my face to avoid recognition by the eye of equity!


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## tygrus

1 month salary and benefits per yr of service is standard. You should be getting a year of full benefits. Tell HR you want that otherwise you will got public with a sexual harassment claiming the CEO touched you in the bathroom. :wink:

All joking aside, I think you can wiggle a little more out them. They want quick settlements. Make that the end goal. Something like give me 10 months and I signed right now, done deal, otherwise I should have this reviews by my lawyer.


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## gibor365

> Indians are taking a ton of jobs in Saskatchewan. I'm not talking about Indians immigrating. I'm talking about guest workers. Non-Canadians.


 True! They are coming in packs for "business trips" and ... staying for good ... Last several years I had feeling that I'm in Chennai , not in Canada... you hear more their language than English


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## sags

My son was terminated yesterday for what appears to be no cause. We haven't received the paperwork from the company yet.

He is considered in the construction trade and they are exempt from any termination benefits. I believe IT workers are also exempt.

He was due a $3500 bonus in early December.

Today, they held a pre-work meeting and discussed his firing among the employees in his absence..........a definite no - no.

They told the workers it was to shake things up and send a message........a big mistake in front of dozens of witnesses.

They said the owner crunched numbers and wants to reduce their costs, so they cut the senior employees with the biggest bonuses.

It looks like he has no choice but to see a lawyer to file an unjust dismissal and defamation lawsuit.


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## mordko

Wish they did this to me... I really, really do...


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## gibor365

> Something like give me 10 months and I signed right now, done deal, otherwise I should have this reviews by my lawyer


Actually I was thinking about doing similar, but they (CEO, Head of HR and SVP) started to bomb me with numbers and terms and when I started to ask specific questions , advised me to read package first and than to ask questions....
When I read letter , it was unclear for me , if they talk 30 weeks only severance or severance and termination together.
So, I sent email and HR responded that it's all together 30 weeks...

Tomorrow I'll go to lawyer and will see what options I have.... Over phone they told me that they charge 30% from what they can negotiate on the top of the termination offer ....

The problem that if for example, they will negotiate additional 10 weeks, I should pay them 30%, because this amount will be taxed at marginal tax, I gonna get only around 20-25% net....


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## gibor365

mordko said:


> Wish they did this to me... I really, really do...


Are you talking about which case?!


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## sags

Part time work, temporary work, seasonal work, low paid work........it is getting bad for people these days.

I read the other day the government is offering people in Newfoundland $250,000 each to move to where there are jobs.


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## mordko

> Are you talking about which case?!


Yours. It would work out for me; besides I am a bit bored... Are you OK with it?


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## sags

Are you in IT Gibor ?

It looks to me that they are offering you all severance pay, and it looks like a decent package.

According to the lawyer websites the standard is 1 month per year of seniority. It could be more or less........depending on the judge.


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## gibor365

mordko said:


> Yours. It would work out for me; besides I am a bit bored... Are you OK with it?


Yeap, sure ... In any case I was aiming for early retirement in 4 years, so it happened earlier  . I also was very bored and last couple of years hated this job.



> Are you in IT Gibor ?
> 
> It looks to me that they are offering you all severance pay, and it looks like a decent package.


Yeap, in IT. As per law they should've give me 21.2 weeks, they are giving almost 9 weeks morbe court decie both cash and health benefits. To tell the truth, O don't really want to go to court...wait several years for court decision (and this company can go bankrupt at all), pay to lawyer, pay marginal tax at 40-50% (didn't run numbers yet) ... and who knows what will be court decision?!


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## sags

I agree that going to court is a challenge, especially given the legal costs.

In my son's case it appears that is his only option, if he can afford to use it.

Other than that the company has basically told him........thanks for the memories.............now f**k off.


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## gibor365

sags said:


> I agree that going to court is a challenge, especially given the legal costs.
> 
> In my son's case it appears that is his only option, if he can afford to use it.
> 
> Other than that the company has basically told him........thanks for the memories.............now f**k off.


In your son's case, I'd go to lawyer/court for sure...as he has practically nothing to loose... also very likely that would go to court if they were giving me minimum as per law 21.2 weeks + 8 weeks of health benefits...and benefits are pretty good, $1,000 HFSA + $200 glasses for all of us + $500 for every paramedical service ...


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## mordko

... Or you could pocket the money and find something else. How old are you?


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## gibor365

mordko said:


> ... Or you could pocket the money and find something else. How old are you?


50.

Not planning to look for something right now... Need to take care of deteriorating health ... , esp vision.... was stupid enough to have eye surgery done in Fedorov's eye center...
Also want to get something from EI, paid too much through my life...
After maybe contract work, maybe not...who knows?!


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## tygrus

People dont realize, this is just the start. World economists have warned that we may never see above 2% growth ever again. Even if things are booming, tech is eating it and itself at the same time. The advances that come out of automation are staggering. 

If you have kids, you better give serious second thought to just getting them educated and hoping to get a job.

As an anecdote, I heard about some large company who wanted to modernize their HR systems. They hired a couple of MIT geeks and turned them loose. Well these brainiacs wrote a software program that went above and beyond what the company wanted, but it was all good. Resulted in 50 layoffs in HR.

Wait until software starts writing itself and laying off the programmers.


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## gibor365

> If you have kids, you better give serious second thought to just getting them educated and hoping to get a job


 Was seriously thinking about it . My son 4th years double degree coop program business/math at Waterloo and he prectically doesn't need our money. Daughter at grade 10, and has RESP that probably will be enough for 3 years of study (if she doesn't decide to go to medical school ). My wife has more than just good income and has stable job. No debt. Own house and portfolio more than 1 mil ...


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## sags

Sounds like people we had who put suggestions in the box to eliminate their own jobs..............morons.

And then you have Wells Fargo.

The executives execute a plan to create hundreds of thousands of new accounts and charge their clients fees, and in some cases having them go unpaid and reported as a default to credit bureaus.

They fired low level employee who refused or complained.

Once caught they fired all the low level employees and rewarded themselves with $125 million dollar severance packages.

A bi-partisan Senate committee tore strips off the CEO.........but he just sat there claiming it was all a big coincidence.


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## tygrus

When I worked the corp world, every company had a continuous improvement initiative where they brow beat us to come up with ideas and initiatives to save the company money. We were probably unwittingly putting people out of work and didn't know it.


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## Daniel A.

Gibor I'd say the company already knows that what they are offering is more than fair, many companies do a fairly good job researching offers.

Take the offer is likely what a lawyer will tell you, it sounds like the company is not interested in being in court hence the fair offer.


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## james4beach

gibor I'm sorry to hear about this. I was laid off as well a few years ago so I know the unpleasantness of it.

As I understand it, and I am not a lawyer, there are three parts of the pay you will receive at layoff. The company may lump it into one figure but there are three things going on:

1. minimum pay in lieu of notice. In your case this is 8 weeks.
2. severance pay under the Employment Standards Act, link. In your case I think it's 13 weeks.
3. extra they're giving on top. Only this is the nice and generous part -- the rest is REQUIRED.

Here's a recap of what they are offering you as I understand it
* 8 minimum
* 13 severance
* 9 weeks extra

Plus the 7 months medical. To give you my own data, I worked in an Ontario job for 3 years and received
* 12 weeks pay = 6 minimum + 3 severance + 3 extra
* 2 months health benefits

What they're offering you sounds OK to me. I don't know the correct way to "scale up" these expectations based on your longer years, it seems you're getting some nice extra.

In your situation, I would probably try to negotiate a bit before rushing to sign, but I'm not sure it's worth seeing a lawyer due to those fees they will charge. In your situation I would ask the company for a few more months of health benefits. *Edited*: hmm maybe you're right, if all it takes is a call from the lawyer and they add on a few extra weeks, and you keep 70% of that, maybe not a bad idea. Just make sure there are no other fees on top. I can imagine lawyers throwing on extra hidden fees.


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## AltaRed

sags said:


> A bi-partisan Senate committee tore strips off the CEO.........but he just sat there claiming it was all a big coincidence.


Off-topic but he ain't getting off scot free http://www.bloomberg.com/news/artic...rfeits-more-than-41-million-amid-board-review


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## StayThirstyMyFriends

Talk to the lawyer tomorrow - he will tell you what is "common law". My understanding is the Employment Standards Act is not typical. Companies expect that they may have to pay as much as 1 month / year, they offer you half and see if you take it. I'd think you should tell them you'll meet in the middle - 3 weeks / year of service. But you lawyer will give you much better advice I'm sure.


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## gibor365

> but I'm not sure it's worth seeing a lawyer due to those fees they will charge.


 They don't charge anything . Front deck lady asked me all numbers, salary, years of service etc....entered it somewhere (maybe some kind of calculator) and invited me to see lawyer for free consultation. She said that their company takes 30% of amount they can negotiate above 30 weeks offer... 
I don't know the procedure, but if they simply can call and negotiate another 10 weeks, I'm ready to pay them 30% of the amount....


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## Eder

I'm sorry you got laid off but 50 is old enough to pull the pin....I did at 53 and wish I did it sooner. Let wife have a long & fulfilling career...


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## gibor365

Eder said:


> I'm sorry you got laid off but 50 is old enough to pull the pin....I did at 53 and wish I did it sooner. Let wife have a long & fulfilling career...


Thanks Eder , I was planning to do it voluntary at 54, it happened at 50, so be it


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## james4beach

gibor could you please share with us the results of this? It would be helpful for other workers to know what people are getting out there. There's a reason employers are so secretive about this ... they don't want workers to learn what's the norm or compare to each other.

If gibor happens to actually be your real name (or a way the employer can identity you) then I'd suggest creating another user ID so that when you share the information, it can't be tied back to you.

Personally I'd be really interested to know your severance deal and if a phone call from the lawyer can drive it up. Others here may be right when they say that the Employment Standards Act isn't the same as legal norms. In my case I only worked at the co for 3 years before layoffs, so it wouldn't make much of a difference, but with 13 years of service that's sounding like it COULD make a difference


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## mordko

gibor365 said:


> Thanks Eder , I was planning to do it voluntary at 54, it happened at 50, so be it


Sounds like between the company and EI you will get paid for a large chunk of the 4 years anyway so perhaps you should just open a bottle of champagne.


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## carverman

gibor365 said:


> Actually I was thinking about doing similar, but they (CEO, Head of HR and SVP) started to bomb me with numbers and terms and when I started to ask specific questions , advised me to read package first and than to ask questions....
> When I read letter , it was unclear for me , if they talk 30 weeks only severance or severance and termination together.
> So, I sent email and HR responded that it's all together 30 weeks...
> 
> Tomorrow I'll go to lawyer and will see what options I have.... Over phone they told me that they charge 30% from what they can negotiate on the top of the termination offer ....
> 
> The problem that if for example, they will negotiate additional 10 weeks, I should pay them 30%, because this amount will be taxed at marginal tax, I gonna get only around 20-25% net....


Sorry to hear about your termination and loss of your job. :courage:

When I was terminated in mid 2002 with Nortel due to downsizing already and my health issues, they looked at my length of service of 23.5 years and decided with personnel to give me an special leave of absence at 90% of
my regular pay where I would still be considered "employed" until reaching the 25 years of service milestone to get a better pension.
Because of my age (56 at the time) and with my ongoing health issues, that was probably a generous offer at the time, so I didn't need to consult a lawyer, because it was highly unlikely to get a better settlement, especially being offered either lump sum severance payment or having it spread out over 136 monthly payments top of my pension. 

So I thought I got a pretty good severance deal , until the company went bankrupt at the end of 2008, and the remaining spread out severance payments stopped. They were paid out of general revenues and not guaranteed like a pension is. 
But, even with the Nortel DB pension reduced 30% over the last few years, and the loss of the TRB (Transitional Retirement Benefit), I'm not complaining, when compared to most termination (without cause) situations these days.

I would think that in cases of termination (without cause), where the employee has been working for at least 10 years, the termination has to be fair and generous.
Your age will have a lot to do with it, as well as any skills you possess to make you still employable again without going through retraining. 

You mentioned you work in IT, so that is a more technical work environment than other kinds of employment.
If the company is farming out the functions that you used to do, to an offshore service organisation to save on overhead costs, and your job prospects of finding employment in your area is slim to none, it may be worth discussing it with a lawyer.


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## carverman

gibor365 said:


> They don't charge anything . Front deck lady asked me all numbers, salary, years of service etc....entered it somewhere (maybe some kind of calculator) and invited me to see lawyer for free consultation. She said that their company takes 30% of amount they can negotiate above 30 weeks offer...
> I don't know the procedure, but if they simply can call and negotiate another 10 weeks, I'm ready to pay them 30% of the amount....


I think that in your specific case, it is worthwhile at least discussing it. With a free consultation session, you have nothing to lose. 

In high tech which includes IT, your age has a LOT to do with it, as well as your present state of health and length of service. and maybe also the difficulty of finding future job prospects that pay at least what you are getting now. 

With over 10 years of service, combined with your age, (you mention 13 yrs), they need to consider that your prospects of finding another job that pays what you are getting may not be that easy these days.

There is a rule of thumb to be eligible for company pensions ..years of service + your age..which normally works out to 85.

For example if you happen to be around 50 yrs of age + 13 years of service that is only 63...still a long ways off from drawing a pension, so you may need to continue working for up to 22 years before being able to retire these days.

In high tech and maybe IT?. after age 55, you are considered by many employers to be "too old" to get hired as they can draw on new grads and younger ones that are more energetic, and are able to put in a few years of working for the company.
Obviously this doesn't apply when the work is farmed out to a foreign entity.


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## sags

To add some complexity to already complex law, in Ontario an employee must have at least 5 years seniority to collect severance benefits.

The only other recourse is to file an unjust dismissal claim. In a general layoff, this isn't even an option as it would be a "just" layoff.

The Ontario government is making changes to employment law in the Province.

Reading the employment law in Ontario, it is hard to believe so many categories of work have no protection under the law. 

When people do qualify for termination benefits (1 week per year of service to a maximum of 8 weeks as mentioned by Carverman) the benefit also includes 4% vacation pay, the value of health benefits, and any other benefit the employee would normally have earned during the termination period, which would include any bonuses.

In severance pay, an employee must be active in looking for work which would reduce the benefit.

Gibor should be sure he can "retire" without looking for work. EI will include a similar provision.


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## ian

I cannot give you advice but I can tell you my experience. I worked for an multinational. A few years ago our max. payouts were generally about 3 weeks per year of service to a max of 24 months.. In most cases the company would make an offer. If the employee refused and came back for more there would be some negotiation. But this is my experience in Ontario, BC Alberta, and Prairies, your situation could be very different.

I would strongly advise you NOT to go on contingency, ie get free advice and pay out 30 percent of the settlement over and above what you were offered. I have seen several people do this. WHat they did not realize is that it took one phone call to get the extra. In my case I engaged a senior labour lawyer. I had all of the information gathered and indexed. Salary history, benefits, stock options, bonus, etc. Over a period of a few weeks with some minor negotiation the lawyer was able to increase my payout substantially. His fee was $5k. He actually had that included in the settlement. This was far less than the 30 percent route. 

In my view, if you cannot get the payout negotiated quickly and early then it may be a good indication that your employer will take this to the bitter end. In which case it might be more advantageous for you to take the money and go.

Rejection can be challenging. In my case I wanted the package and was very happy with the outcome. But there is always a tinge of regret and the feeling that you were no longer wanted/valued. For me this passed very quickly. Take your time, don't make any harsh decisions. 

To give you an insight into the US practice.....peers of mine who were laid off with the same service levels got 6 months max compared to our 24 months. Today, in the US, it is reported that IBM is/has moving thousands of jobs off shore and bringing in hundreds of low paid temp. workers. I am told that IBMers in the US are being laid off with one month's severance regardless of service. The brother of a colleague of mine recently negotiated a 3 1/2 year payout from his IT sector employer in Italy.

You will be eligible for EI but it will not start until the end of your severance period. EI reporting is on line. You are asked if you are in Canada and available for work. There is no requirement to prove that you are searching for a job or to provide details of that search. At least, this was my experience. Apply for EI as soon as your settlement is agreed to.

Also, pay attention to the tax implications. You can probably roll some monies into RSP. Another option is to have part of your severance paid to you in Jan 17 in order to avoid higher taxation.

Good luck to you.


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## birdman

Gibor, before retiring years ago I did a number of these and then even crafted my own for board approval when I did a merger. Without knowing all the details of your employment it is hard comment however, like others have said it seems fair. In saying this that doesn't mean that there may not be a bit more still on the table. A couple of suggestions which I don't think have been mentioned.
1. Instead of taking the payment in a lump sum I took mine over 15 years at 6.75%. My company was large and stable (financial services) and I was comfortable in it being around but doubt if this would apply in your case.
2. I also pressed and received pay for benefits for the 2 years severance I received. All in benefit costs for an employer run around 20%which in my case included 6 weeks annual vacation(12%), company UIC premiums ( 3%), CPP (5%), company pension plan (7%), health benefits (??), car allowance (6,000.pa). In total, probably over 20% which they may add to your package.
3. I received hefty annual bonuses and included these as part of my total compensation.
4. When working and if I had to let someone go and made them a fair offer I would hope they would accept it. Yes, it costs lots to fight it but it also cost the company lots. If the employee in your situation came forward politely and with some justification I would have no problem in paying a bit more, at least $10,000. to offset legal costs and just make it go away.

All the best and keep us in the loop.


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## carverman

sags said:


> Reading the employment law in Ontario, it is hard to believe so many categories of work have no protection under the law.
> 
> When people do qualify for termination benefits (1* week per year of service to a maximum of 8 weeks as mentioned by Carverman*) the benefit also includes 4% vacation pay, the value of health benefits, and any other benefit the employee would normally have earned during the termination period, which would include any bonuses.


Did I mention a maximum of 8 weeks? While that is the standard Ontario employment legislation to compensate employees being permanently laid off...individual cases are different. There are a lot of factors that determine whether a terminated/laid off employee takes what the company is offering or takes other options such as seeking legal advice and perhaps litigation with an employment law familiar lawyer.

I don't think that any lawyer will do, as the lawyer selected to represent the terminated employee must be thoroughly familiar with Ontario employment laws, and what can be done in exceptional circumstances that has resulted in termination of a long term employee (10 years or more), and their chances of finding suitable employment long term (not short term contract) work after the termination package runs out, that will pay equivalent salary and benefits to what the employee is receiving now.

Even without the inclusion of a bargaining unit, (union) the employee, depending on the termination compensation package being offered, he can certainly seek a better deal with the help of an " employment law specific law firm and be assured that the employer will rethink and offer a better termination compensation package. 

Several circumstances can affect the terminated employees chances of finding future employment in the field he is accustomed to working.

He should not be cast out on the heap after working with the IT company for 13+ years without some additional compensation and neither should he have to go to work at McD's for minimum hourly wage either, after the EI runs out.

If the company is downsizing because their Canadian employees are being replaced by foreign workers (India or wherever), ultimately it is the company's' decision to do that, therefore they have to be more generous in their compensation package.

As I mentioned in my other posts...there are several factors that the employer needs to consider when terminating a long term employee,at least here in Ontario.
1) Length of service
2)Age of employee
3) Health of employee (to find suitable long term work)
4) Availability of the same or similar work in the area he is currently living

If the employee can't find suitable work in the area he lives in, has to seek employment out of the city, or even province, that also has to be taken into account, as it could result in huge costs and disruptions to move to a different locale.


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## Mukhang pera

I'll stick with my advice to consult a lawyer specializing in Ontario employment law.

From what I have read here, the "standard" severance pay in Ontario is one month for one year of service, with little variation. I must say that has the beauty of simplicity. I would expect very few, if any, wrongful dismissal cases reach Ontario courts, because everyone there understands and accepts the one month for one year rule. Here in B.C. it's much more dependant on the facts and a 13-year employee could get anywhere from 8 weeks to 24 months. B.C. courts have also been known to order an "extended notice period" in some cases and to order aggravated, exemplary or punitive damages where the manner of dismissal has been high-handed, humiliating or otherwise oppressive.

One item about which little has been said since the initial post is the employment contract term limiting recovery to what the employment standards legislation requires. That may be because many here know that Ontario law makes such a term unenforceable. I have no knowledge of Ontario law, so I am content to let the Ontario law experts here address the issue. 

In my initial post, I cited a B.C. case where the court declined to enforce a clause purporting to hold the employee to the statutory minimum. But that was not because the law refuses to enforce such provisions. A reading of the case shows why the court found it could not be relied upon by the employer in the particular circumstances.

But B.C. courts have upheld the validity of such contractual provisions. Below is a digest of one such case. The 6-year employee asked the court to fix the notice period at 9 months. The court told him to get stuffed and take the 6 weeks due under his employment terms:

Arasteh v. Best Buy Canada Ltd. 

EMPLOYMENT — Wrongful dismissal — Damages — Defendant dismissing claimant without notice after 6 years’ employment — Provincial Court judge finding claimant wrongfully dismissed — Judge finding “associate handbook” comprising part of claimant’s employment contract, and awarding damages based on employment standards legislation as required by the handbook — Appeal judge upholding that decision, and finding the contractual provision governing notwithstanding defendant’s failure to give notice or pay in lieu.

The full text of the decision may be found here:

http://www.courts.gov.bc.ca/jdb-txt/SC/10/00/2010BCSC0048.htm

As an aside, I note that within the body of the judgment appears the following:

[29] During the hearing of the appeal, counsel for Best Buy was able to provide the court with the decision of the Ontario Court of Appeal in MacDonald v. ADGA Systems International Ltd., [1999] O.J. No. 146. In that case, the court said, at paragraph 17:

There is no dispute about the applicable law. Both parties acknowledge that where an employment contract is for an indefinite period and the dismissal is without cause, an employee is entitled at common law to the presumption of an implied right to reasonable notice of an intention to terminate the contract, _unless the employment contract clearly stipulates a notice period:_ Carter v. Bell & Sons, [1936] 2 D.L.R. 438 (Ont. C.A.) (emphasis added).

That would suggest that, at least back in 1999, the Ontario Court of Appeal looked at these things in much the same light as the B.C. courts do today, i.e, the contract will govern unless there is something in the facts that would render it otherwise. Perhaps Ontario law has evolved to the point where such a contractual provision is a thing writ in water and may be ignored. Still, I would encourage the OP to seek the advice of counsel on that score.


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## ian

I knew that the package would be coming in the near term. I asked around and got the names of a good labour lawyers. The first one declined because of a conflict however he recommended one that I subsequently engaged.

You can negotiate on your own however I felt more comfortable engaging counsel on a fee for service basis. I was very familiar with packages as our firm had been downsizing for ten plus years and I typically had to do it once per year. Absolute worst part of my job.

I was very fortunate. My employer was very fair, settled quickly, and honored all commitments. I have been involved on the sidelines when a laid off employee had a grossly exaggerated sense of what they were entitled to or how far the company would go. It did not go particularly well for the employee. You can forget about a lawsuit or going to court. That is the stuff of TV land. In reality the difference between your firms first offer and where you would like to end up would never warrant an elongated negotiation or a lawsuit. One more thing....if your firm routinely engages outside counsel for this type of work you should be able to get a quick settlement if only because they will compare your request to the cost of engaging outside counsel on this matter.


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## Eclectic12

Mukhang pera said:


> I'll stick with my advice to consult a lawyer specializing in Ontario employment law.


+1.




Mukhang pera said:


> ... From what I have read here, the "standard" severance pay in Ontario is one month for one year of service, with little variation.


Interesting ... for those I kept contact with and were willing to talk privately about it - the feedback has been that there has to be a minimum of five years service. The typical offering was two weeks per year that a quick letter fired off by a lawyer quickly resulted in a bump up to three or four weeks.




Mukhang pera said:


> ... I must say that has the beauty of simplicity. I would expect very few, if any, wrongful dismissal cases reach Ontario courts, because everyone there understands and accepts the one month for one year rule.


If so, I seem to be running with the wrong crowd as the few who have talked about four weeks or more have either been executives or had clear proof of law breaking.


I should note that most of these have been people working at mid to large size corporations. As well, more of the settlements when eventually signed have had a non-disclosure clause.

Then too, since most of most of those I have talked to work in IT - the employer has usually preferred to pay severance as they don't want to have someone who knows their job is ending working on live code with the opportunity to leave presents behind.


Cheers


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## sags

Many employers couldn't care less about lawyers or even orders issued by the Ministry to enforce payments of legislated termination benefits.

That is why Ontario is currently changing the law to provide some teeth to enforcement by the Ministry.

_Employers who do not make employment standard payments could have their permits, operating licence and even drivers’ licence revoked._

http://business.financialpost.com/e...ur-relations-changes-could-mean-for-employers


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## james4beach

Good reminder up thread, don't forget about EI !


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## gibor365

deleted


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## mordko

He talked himself out of business. Good guy.


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## ian

Good luck whatever you do.

Can you delay a little to see if another laid off employee challenges the employer...formally or informally?


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## gibor365

My deadline next Tuesday ... I was talking to several laid off employees , some just signed off, others went to lawyer for consultation.... but AFAIK nobody went to court....


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## BigMonkey

Sorry about the news. 

Based on your situation...
- Seems like you have a good amount saved up
- house paid off
- kids tuition are covered and not really dependant on you
- wife employeed and makes good money
- about to receive a large amount of money from severance
- will be eligible for pension, CPP, and EI in the near future

IMO you have reached financial freedom at this point. It's really up to you whether you want to find another work to "keep yourself busy".


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## james4beach

gibor it's good that you consulted with the lawyer. If the company was clearly offering you less than the "expected" amount for your situation, he would have said so.

I think what the co offered you, 30 weeks is not bad. Like I said in message #24 they're offering you 9 weeks pay in excess of the norm. Try asking them for longer health benefits, it can't hurt to ask? Even with the deal as is, it doesn't seem bad to me.

P.S. there must be something about this time of year... one of our key people at the office got laid off today


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## scorpion_ca

Can you request your employer to increase the severance package instead of demanding or threatening to take them to the court? You could also explain what you have done for them for the last 13 years. Who knows they might change their mind.


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## james4beach

Agree, just ask them (make sure you ask the right person -- probably HR). Maybe they will oblige. Worst that can happen is that they say no, and then you accept the current deal.

Be reasonable, polite, don't threaten. But explain that you've done a lot for them in 13 years and explain how this layoff is difficult for you and how you'd really appreciate some additional consideration.


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## janus10

So many good points made, but I have two quick ones.

A co-worker was very upset when he was terminated. He was a Senior sales person in his early fifties and well respected.

I don't know what he was offered but he took an aggressive stance by hiring a lawyer. I don't know if he took them to court but it dragged on for over a year. A bitter, stressful year. He says he won but that might only account for the money and maybe his wounded pride. I hardly think he won since he was still angry more than a year after it settled.

When this happened with my wife, I crafted a letter saying we consulted with a lawyer who advised us, based on the same criteria carverman mentioned, why she was entitled to double what they offered. Took me fifteen minutes to put together. They countered with a split down the middle so a 50% increase.

When it came to be my time they offered more than 4 weeks per year but I was a Senior sales person.


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## james4beach

^ awesome stuff, janus10. Awesome! Thanks for sharing. How many years of employment did your wife have? And how many years did you have? (Meaning at that same company ... as this is a key determinant of compensation)


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## carverman

gibor365 said:


> After reading all docs, lawyer said that the biggest problem that Indian company that bought us included clause (I mentioned earlier) in new contract (Indian smart asses aren't like naive Canadians ), so if we go to court the chances that I win 40/60 ... no way I gonna bet on it...


I missed the "signing of the new contract"with the Indian IT company that bought out/took over operations of your previous employer's IT company.

I was thinking you were terminated by your previous employer because the Indian IT company had bought it, and you were still under the original contract of your previous employer, being terminated.

Strictly my opinion here...
If you signed the contract with the new employer (the Indian IT company), then all bets are off that IF you were to take them to court, it would result in a favourable decision to get more compensation. 
You accepted the consequences stated in the clause by signing the contract.


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## Daniel A.

gibor365 said:


> OK, got free consultation today ... I went there not only because its free, but this lawyer firm has pretty good reviews on the Web.
> After reading all docs, lawyer said that the biggest problem that Indian company that bought us included clause (I mentioned earlier) in new contract (Indian smart asses aren't like naive Canadians ), so if we go to court the chances that I win 40/60 ... no way I gonna bet on it...
> Lawyer said that another option...he can write demand letter to company , but the danger that company can tell that in this case they will pay only minimum 21 weeks and I can go to court that I don't want to do...
> He also said that I can try to tell company that if they don;t increase to 40 weeks, I'd go to lawyer/court , however, again, if "they are assholes" - lawyer words... and they are , company can just pay me minimum 21 week and "wish me luck" in court...
> Thus, most likely I gonna sign 30 weeks offer .... lawyer also mention that nowadays 9 weeks above required minimum is not bad at all
> 
> I remember  Can do it only after 8 weeks (termination period)


Just as I thought.


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## Beaver101

sags said:


> Many employers couldn't care less about lawyers or even orders issued by the Ministry to enforce payments of legislated termination benefits.
> 
> That is why Ontario is currently changing the law to provide some teeth to enforcement by the Ministry.
> 
> _Employers who do not make employment standard payments could have their permits, operating licence and even drivers’ licence revoked._


 ... +1 or unless you belong to an union, then would you have negotiating power.


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## gibor365

scorpion_ca said:


> Can you request your employer to increase the severance package instead of demanding or threatening to take them to the court? You could also explain what you have done for them for the last 13 years. Who knows they might change their mind.


Did it too , Had conversation with HR director and SVP ...explained that I need to do special expensive eye surgery in Bochner or Herzig (and I really do) ... and working on some company projects contributed to the vision issue (that is also true).... added that at my age and health issues it's difficult to find another job etc.... 
HR person told me to write he email as she cannot decide and should contract 3! layers of her bosses (that located in India)...
So, we'll see... I don't believe that will increase, but it doesn't hurt to ask


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## james4beach

gibor yes ask in paper, these things must be done in writing. I think those are good issues you raise.


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## carverman

gibor365 said:


> Did it too , Had conversation with HR director and SVP ...explained that I need to do special expensive eye surgery in Bochner or Herzig (and I really do) ... and working on some company projects contributed to the vision issue (that is also true).... added that at my age and health issues it's difficult to find another job etc....
> HR person told me to write he email as she cannot decide and should contract 3! layers of her bosses (that located in India)...
> 
> So, we'll see... I don't believe that will increase, but it doesn't hurt to ask


strictly my opinion here...but...
You didn't mention the state of your health before, so IF you really require expensive eye surgery, (and not just cosmetic surgery to
avoid wearing glasses or contacts), you may actually have a special case to ask in writing, (but not demand), for more compensation.

If you can supply evidence from an ophthalmologist (eye doctor) that you could possibly become partially blind (or even blind in one
eye), if this is not done, 
AND this was the result of gradual deterioration during the latter part of the 13 years you have worked for your employer,

AND it was not due to an accident, but a consequence of the job you were doing, 

AND your chances of finding another job now where you are required to stare at a computer screen 8hrs a day.....it could certainly affect your prospects of finding a permanent job in IT.

Not too many legally blind people can work in software research or similar. I know of just one person in Nortel out of thousands that worked during the time that I worked there, who was legally blind. He was a programming "genuis" had a special machine to translate what he was saying into code for programming, so they still hired him.


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## My Own Advisor

Sorry to hear Gibor.

As for 13 years and 2 months of service = 30 months of severance + benefits for same period, that's pretty decent.

Not ideal, but good and better bare minimum.

I would sign.

Lawyers rarely work for free either if you wish to fight the settlement 

http://www.toronto-employmentlawyer.com/employment-law-practice/severance-packages/

Severance calculator on that page.


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## Beaver101

^ 30 months? If gibor got that, he would have signed on the dotted line at that moment.


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## gibor365

Beaver101 said:


> ^ 30 months? If gibor got that, he would have signed on the dotted line at that moment.


Yeap! 30 months I'd sign same second


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## gibor365

> So many good points made


 I agree and thanks everyone for replying ..... at least I didn't see replies like "you don't like Onratio laws -> go back to Israel: etc 


Update, after negotiation directly with head of HR and chief deputy (or whatever his title is ), I was able to negotiate additional 4 weeks of pay and medical benefits. So, I got almost 13 weeks above provincial minimum. Just hour ago I signed


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## mrPPincer

^nice, congrats


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## james4beach

Wow great stuff! I'm happy for you gibor, that sounds fantastic. 4 weeks additional pay AND medical ... truly a great deal I think!

gibor you've signed, it's time to celebrate. Happy Friday 

Did this happen just by you talking with them, without lawyers and things?


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## scorpion_ca

You should send me one week of your pay through Western Union as I am the one who suggested at first to request your former employer to increase the severance package. :cool-new:


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## scorpion_ca

gibor365 said:


> at least I didn't see replies like "you don't like Onratio laws -> go back to Israel: etc


You see...it's you whose mentality has not been improved even though you have lived in Canada long time.

I think most of the forum members are helpful, respectful and compassionate.


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## james4beach

scorpion_ca said:


> You should send me one week of your pay through Western Union as I am the one who suggested at first to request your former employer to increase the severance package. :cool-new:


No, I suggested it earlier in post #24 . "I would probably try to negotiate a bit before rushing to sign ... I would ask the company for a few more months of health benefits"


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## My Own Advisor

Well done Gibor. It doesn't hurt to ask. 

34 weeks after 13 years is solid.

Can you defer some money until 2017 to help with taxation?


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## gibor365

> I think most of the forum members are helpful, respectful and compassionate


 I know it very well, this is why I asking for info on this forum... luckily one of the CMFers (everyone knows who ) somehow missed this thread :tears_of_joy:


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## gibor365

james4beach said:


> No, I suggested it earlier in post #24 . "I would probably try to negotiate a bit before rushing to sign ... I would ask the company for a few more months of health benefits"


james, health benefits weren't so important for me, as most likely I will use ALL benefits before end of April (original 30 weeks) , in my email I added it in any case 
btw, I was planning anyway to talk to HR anyway...



> Did this happen just by you talking with them, without lawyers and things?


 Yes. I didn't want to involve lawyer


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## gibor365

> Can you defer some money until 2017 to help with taxation?


 unfortunately, I cannot.... asked this question on termination day.


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## scorpion_ca

gibor365 said:


> unfortunately, I cannot.... asked this question on termination day.


I would not do it with this Indian company. 

When I quit in 2011, CEO of the small company asked me to join with them again with salary increment but I politely refused. After three months, that company filed for bankruptcy.


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## james4beach

I agree, just get your money as soon as possible. Remember, PCF is running a promotion for new deposits at 2.25% until year end
https://www.pcfinancial.ca/rate/

If you are eligible for it, also make sure you apply for EI as soon as you receive your RoE


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## gibor365

james4beach said:


> I agree, just get your money as soon as possible. Remember, PCF is running a promotion for new deposits at 2.25% until year end
> https://www.pcfinancial.ca/rate/
> 
> If you are eligible for it, also make sure you apply for EI as soon as you receive your RoE


Yes, I prefer to get money ASAP, the company can go bankrupt or competitor can buy it...
I recived already 21.25 weeks minimum and already transfered it to PCF ... Sucks that already, at source, I paid 30% taxes  ... in 2 weeks should get rest... RoE should be amended... HR lady told me to apply for IE only after I get all severance and new amended RoE will be on canadaservice website


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## gibor365

Funny thing....  ... My last day of work at the company (8 weeks termination period from termination d 50 ate) is falling on my 50 Bday  . If I would stay in Israel and work in police, I would retire exactly at same date !


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## avrex

gibor365 said:


> My last day of work at the company is falling on my 50 Bday


Congrats, gibor. I think this is the best 50th birthday present ever!


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## janus10

james4beach said:


> ^ awesome stuff, janus10. Awesome! Thanks for sharing. How many years of employment did your wife have? And how many years did you have? (Meaning at that same company ... as this is a key determinant of compensation)


She had 13 and I had 12. She got let go a few months before our employer came to me and wanted to completely change my role with the company. I was fortunate that not only did I get a severance package (although I think what they did was similar to constructive dismissal) but it was the best package I heard that anyone received. Doesn't mean it was the best, just the best that I heard about.

I should add, we never did consult any kind of lawyer. I just crafted the letter stating that we did to see how stuck they were to their position.


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## janus10

Congrats, gibor, on getting additional money and benefits and putting this issue to bed. Your sanity, health, emotional well being are priceless and trying to fight a difficult battle could have cost you more than you could afford - in all manners of speaking.


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## sags

Free from the shackles of work Gibor.............Hallelujah............


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## mind_business

Glad you're happy with your severance Gibor, but I'm curious ... and my have missed one of your posts ... have you decided to retire, semi-retire, or jump back into the workforce for a while?


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## gibor365

mind_business said:


> Glad you're happy with your severance Gibor, but I'm curious ... and my have missed one of your posts ... have you decided to retire, semi-retire, or jump back into the workforce for a while?


We'll see  . For now, I'm kinda retired and not looking for any jobs.... When severance and EI ends, we'll see again  ... 
From my last years calculations, in 2015 we spent only 75% of my wife's income, so it's not really essential for me to work 
So far, i'm pretty busy.... finally I have time to take care of my health....signed into Goodlife , going to medical specialists, started taking care of our home (didn't have much time when working), learning cooking  etc


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## mind_business

gibor365 said:


> We'll see  . For now, I'm kinda retired and not looking for any jobs.... When severance and EI ends, we'll see again  ...
> From my last years calculations, in 2015 we spent only 75% of my wife's income, so it's not really essential for me to work
> So far, i'm pretty busy.... finally I have time to take care of my health....signed into Goodlife , going to medical specialists, started taking care of our home (didn't have much time when working), learning cooking  etc


Sounds at least like semi-retirement. Enjoy this time in your life ... and like you said, focus on your health.


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## My Own Advisor

gibor365 said:


> We'll see  From my last years calculations, in 2015 we spent only 75% of my wife's income, so it's not really essential for me to work


What a GREAT position to be in  If you can invest most of the severance then, maybe you don't need to work again or only when you want to.

What a nice feeling... :biggrin:


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## gibor365

My Own Advisor said:


> What a GREAT position to be in  If you can invest most of the severance then, maybe you don't need to work again or only when you want to.
> 
> What a nice feeling... :biggrin:


Just submitted T2033 and will be moving 60+K from MF GWL inot CIBC IE (group RRSP). Negotiated for $200 bonus + 50 free trades for 2 months... it will keep me busy ...
From severance I gonna invest up to RRSP max for myself and my wife SRRSP.... rest in HISA... as I've said earlier, our total cash position is about 45% and don't want go below it.
Also, as I won;t be able to use all 50 trades in 2 months, planning (with couple of hundreds $$) to play kinda roulette using TZA and TNA


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