When an Ontario employee is terminated without cause and claims common law reasonable notice, the notice period is not calculated using a fixed formula. Instead, courts assess each case individually using the factors set out in Bardal v. Globe and Mail Ltd. (1960 CanLII 294 (ON SC)). This article explains what those factors are, how courts apply them, and what the resulting notice periods typically look like in practice.
Common law reasonable notice differs from statutory termination pay under the Employment Standards Act. Statutory pay is limited to one week per year of service with a maximum of eight weeks for employees with three months or more of service. However, common law provides no cap on notice, and in many cases, the notice period awarded by courts exceeds the statutory minimums substantially. Understanding how courts apply the Bardal factors can help employees assess the likely range of notice in a particular termination scenario. If you have been wrongfully dismissed, knowing how these factors work is essential to evaluating whether your employer's offer is adequate.
The Bardal Factors: The Framework Courts Apply
In 1960, the Ontario Superior Court established a foundational framework for assessing reasonable notice in Bardal v. Globe and Mail Ltd. (1960 CanLII 294). Justice McRuer identified four primary factors that courts must consider when determining how much notice an employer should have provided to a terminated employee. These factors have been applied and refined by Ontario and Canadian courts for over six decades and remain the standard approach today.
The four Bardal factors are as follows: the character of the employment, the length of service, the age of the employee, and the availability of similar employment having regard to the experience, training, and qualifications of the employee. No formula exists to combine these factors. Instead, courts weigh them together holistically based on the specific facts of each case. A factor that may be determinative in one case may carry minimal weight in another, depending on the circumstances.
Factor 1: Character of Employment
Courts consider the seniority, specialisation, and managerial responsibility of the position when assessing the character of employment. More senior roles, positions with significant responsibility, and highly specialised positions typically attract longer notice periods. The reasoning behind this approach is that employees in these roles generally have fewer alternative employment options and have invested more time and effort in developing skills specific to their employer.
For illustrative purposes, a warehouse worker in an entry-level role may receive a considerably shorter notice period than a vice-president in the same company, even if both have the same years of service. A specialized engineer or senior manager is likely to require more time to find comparable employment than a generalist in a junior position. This factor is often one of the most influential in shaping the overall notice range that courts award.
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Longer tenure generally produces a longer notice period. Courts have recognised that long-tenured employees make a significant contribution to an employer and face greater disruption upon termination, particularly if they have spent many years with one organisation. An employee with fifteen years of service will typically receive considerably more notice than one with three years, even if other factors are similar.
It should be noted that some courts have placed less weight on length of service when an employee is relatively young and highly employable in their field. In such cases, the employee may be able to secure comparable alternative employment despite having spent many years with one employer. Nonetheless, length of service remains a significant factor in the vast majority of cases.
Factor 3: Age
Older employees typically receive longer notice periods. The rationale underlying this approach is that older employees generally face greater difficulty finding comparable employment after termination, which extends the period during which they need financial support. Courts have consistently awarded longer notice to employees in their 50s and 60s compared to younger employees with similar service and seniority.
Age is assessed in combination with the other Bardal factors rather than in isolation. A young, long-tenured, senior employee may receive a moderate notice period, whereas a mid-career employee in a highly specialised role may receive a longer period due to the combined effect of the character of employment and the difficulty of securing comparable work.
Factor 4: Availability of Similar Employment
Courts consider whether the employee can reasonably expect to find comparable employment given their skills, experience, and the state of the relevant labour market. Employees in niche industries, specialised technical fields, or senior roles where comparable positions are scarce typically receive longer notice periods. General economic conditions and industry-specific factors at the time of termination are relevant considerations.
This factor is often assessed alongside the character of employment factor. For example, a specialised geologist working in a remote region may face very limited reemployment prospects, which could extend the notice period substantially. Conversely, a generalist administrative assistant in a large urban centre with an active job market may face fewer barriers to reemployment.
How Courts Apply the Factors in Practice
The Bardal factors are weighed together holistically. No single factor is determinative, and the relative importance of each factor varies from case to case. Courts look at precedents from prior cases with similar fact patterns as a guide when assessing what notice period is reasonable. These precedents help ensure consistency and predictability in the outcomes.
Research into Ontario and Canadian case law reveals illustrative notice ranges that have emerged based on employee profiles. These ranges are based on patterns observed in reported decisions and are presented for informational purposes only. They are not guarantees and should not be viewed as fixed rules.
Junior employees, including those in entry-level positions with short tenure and younger age, have typically received notice periods ranging from one to four months.
Mid-level employees with moderate tenure and some degree of specialisation have typically received notice periods ranging from four to twelve months.
Senior employees with long tenure, managerial or specialised roles, and older age have typically received notice periods ranging from twelve to twenty-four months.
In exceptional cases, courts have awarded notice periods exceeding twenty-four months. These awards are rare and typically involve very long tenure, senior positions, or employees with extremely limited re-employment prospects due to age, specialisation, or market conditions.
Every case turns on its own facts. The ranges presented above are illustrative only and reflect general patterns, not precise predictions. An individual case may fall outside these ranges depending on the specific combination of Bardal factors present. To get a personalised estimate based on your own employment details, try the DemandPay severance calculator. It applies the Bardal factors to your specific situation and provides an estimated entitlement range in under two minutes.
The Effect of Mitigation on Notice Periods
In wrongful dismissal cases, employees have a duty to mitigate their losses. This means that employees are expected to take reasonable steps to find comparable alternative employment after termination. Failure to mitigate can result in a reduction of the notice period awarded by a court.
An employer can apply to reduce the notice period awarded if it can demonstrate that the employee failed to make reasonable efforts to find work during the notice period. What constitutes reasonable mitigation depends on the individual circumstances: qualifications, the state of the job market, the steps the employee took to find work, and other relevant factors. This is an important consideration when assessing how long a notice period an employee might expect to receive in practice.
What to Do After Calculating Your Entitlement
If you believe your employer's severance offer falls short of what you are owed under common law, you have several options. Many employees begin by calculating their full entitlements to understand the gap between what was offered and what the law provides. From there, you may choose to negotiate directly with your employer, or you may prepare a formal demand letter setting out your calculated entitlement and requesting a revised offer.
If negotiation does not resolve the matter, or if you would prefer professional guidance from the outset, you can book a consultation with a licensed Ontario employment lawyer through DemandPay to discuss your options.
Frequently Asked Questions
Q1: Is there a maximum amount of common law reasonable notice in Ontario?
No. Unlike statutory termination pay under the Employment Standards Act, which is capped at eight weeks for most employees, common law reasonable notice has no maximum limit. Courts have awarded notice periods of two years, three years, or longer in cases involving very long-tenured senior employees with poor reemployment prospects. The amount of notice is determined solely by applying the Bardal factors to the specific facts. In exceptional cases, courts may award notice periods that seem generous by most standards because the employee faces genuine difficulty securing comparable work.
Q2: Does the length of service determine the notice period in Ontario?
No. While length of service is one of the four Bardal factors and is generally given significant weight, it does not determine the notice period by itself. A long-tenured employee may receive a relatively short notice period if they are young, have highly marketable skills, work in a field with abundant job opportunities, or hold a junior position. Conversely, a shorter-tenured employee may receive substantial notice if they are older, hold a senior specialised position, or face significant barriers to reemployment. The notice period emerges from the interaction of all four factors.
Q3: What is the duty to mitigate in a wrongful dismissal case?
The duty to mitigate requires that an employee make reasonable efforts to find comparable alternative employment after being wrongfully terminated. This is a legal obligation that courts enforce. If an employer can prove that an employee failed to take reasonable steps to find work, the court may reduce the notice period it awards. What is reasonable depends on the employee's circumstances, such as their qualifications, the job market, the notice period at issue, and other practical factors. An employee is not required to accept any job offer, but must genuinely pursue comparable opportunities.
Q4: How do courts treat the Bardal factors for senior executives?
Courts apply the same four Bardal factors to senior executives, but often weight them differently. For senior executives, the character of employment factor is typically weighted heavily because comparable positions are scarce and require highly specialised skills. Senior executives are often older, which increases the age factor weight as well. The availability of similar employment factor is also usually weighted heavily because the pool of comparable senior roles is limited. As a result, senior executives often receive lengthy notice periods, sometimes exceeding two years. Courts recognise that a senior executive may require substantial time to secure a comparable position elsewhere.
Jordan is an Ontario employment lawyer (J.D., licenced member of the Law Society of Ontario) and the founder of DemandPay, a platform that helps terminated employees understand and negotiate their termination packages. DemandPay provides legal information, not legal advice. More about Jordan