Reasonable Notice and the Bardal Factors in Canada

When a non-unionized employee in Canada is dismissed without just cause, the employment standards minimums are only a starting point. In most cases the employee is also entitled to reasonable notice, or pay instead of notice, under the common law, and that entitlement is usually far larger than the statutory floor.

What Reasonable Notice Means

Across Canada, an employer that dismisses a non-unionized employee without just cause must give notice of termination, pay instead of notice, or some combination of the two. Every province and territory sets a statutory minimum in its employment standards legislation. In Ontario, for example, the Employment Standards Act, 2000 provides no statutory notice for an employee with less than three months of service, one week from three months to under one year, and a rising scale up to a maximum of eight weeks at eight or more years of service.

That statutory minimum is a floor, not a ceiling. Canada employment law also gives most non-unionized employees a common law right to reasonable notice, and reasonable notice is frequently many months longer than the employment standards minimum. The common law entitlement applies unless the employment contract contains a valid, enforceable termination clause that lawfully limits the employee to the statutory minimum, or to some other specified amount that still meets or exceeds it. If there is no such clause, or if the clause is not enforceable, the employee falls back on reasonable notice or severance pay instead of notice.

The Bardal Factors

The leading case on how much notice is reasonable is Bardal v Globe & Mail Ltd, a 1960 decision of the Ontario Supreme Court that Canadian courts still apply today. The court held that reasonableness has to be decided on the facts of each case, having regard to the character of the employment, the length of service, the age of the employee, and the availability of similar employment given the employee's experience, training, and qualifications. These are now known as the Bardal factors.

Character of the employment

More senior, specialized, or hard to replace roles have historically tended to attract longer notice, partly on the reasoning that comparable positions are harder to find. Courts caution against assuming a junior or lower paid role automatically means shorter notice, since the analysis still depends on the individual circumstances of the job and the employee.

Length of service

Longer service generally supports a longer notice period, and it is often the single most consistent factor across the case law. A long tenure with one employer can also make it harder to compete for a new role, which overlaps with the availability of similar employment.

Age of the employee

Older employees, particularly those closer to retirement age, are often awarded longer notice. Courts have recognized that re-entering the workforce later in a career can take longer and can be more difficult, especially in a specialized field.

Availability of similar employment

This factor looks at how realistic it is for the specific employee to find comparable work, given their experience, training, qualifications, and the state of the job market at the time of dismissal. A weak local job market or a very narrow skill set can support a longer notice period.

None of the four factors is decisive on its own, and courts do not apply them mechanically. They are weighed together, and the result can vary significantly between two employees with a similar length of service if their age, role, or job prospects differ.

Is There a Formula?

Many people have heard of a rough guideline that estimates notice as about one month for every year of service. That guideline can be a useful starting point for a very rough estimate, but it is not a rule of law. The Ontario Court of Appeal in Minott v O'Shanter Development Co Ltd expressly rejected treating years of service as a rigid formula, confirming that the Bardal factors call for an individualized, fact specific assessment rather than a mathematical calculation.

In practice this means two employees with identical years of service can receive quite different notice periods once their age, position, and re-employment prospects are taken into account. Anyone estimating their own notice period should treat any month-per-year figure as a loose starting point only, not a promise of what a court would award.

How High Can Reasonable Notice Go?

Reasonable notice awards commonly range from a few months to well over a year, and courts have long treated roughly 24 months as a norm that is rarely exceeded. That said, 24 months is not a hard ceiling. In Keenan v Canac Kitchens Ltd, the Ontario Court of Appeal upheld a 26 month notice award for two long-service dependent contractors in their sixties, after decades with the same company, finding that their age, length of service, and narrow re-employment prospects amounted to exceptional circumstances. Cases like this show that the higher end of the range stays available where the facts genuinely warrant it, even though most cases settle well below it.

Because the outcome depends so heavily on individual facts, nobody should treat any number in this article, or anywhere else, as a guaranteed entitlement. A specific estimate requires a review of the actual employment history, role, and market conditions involved.

Termination Clauses and the Employment Standards Floor

Employers can often limit an employee's notice entitlement to the statutory minimum, or to another specified formula, through a clearly drafted termination clause in the employment contract. Whether such a clause is enforceable is a separate legal question from how much notice would otherwise be reasonable, and it is frequently the first thing a lawyer reviews in a wrongful dismissal matter.

Courts have shown they will strike down a termination clause, and sometimes the entire termination provision, if it falls short of the employment standards minimums in any respect. In Waksdale v Swegon North America Inc, the Ontario Court of Appeal held that if any termination provision in an agreement violates the Employment Standards Act, 2000, the termination provisions are void in their entirety, even if the offending part was never actually relied on and even where the contract has its own severability clause. The practical effect is that a poorly drafted clause can fail entirely, leaving the employee with the full common law reasonable notice entitlement rather than whatever number the contract tried to specify.

The Duty to Mitigate

A dismissed employee does not simply wait out the notice period. They have a duty to take reasonable steps to look for comparable employment, and any earnings from a new job during what would have been the notice period can reduce the damages the former employer owes.

This duty to mitigate was set out by the Supreme Court of Canada in Red Deer College v Michaels. The court held that the burden of proving a failure to mitigate falls on the employer, and that it is not a light burden. An employer has to show both that the employee failed to make reasonable efforts to find comparable work and that comparable work was actually available and could have been found with reasonable effort. An employee who has been searching for a new role in good faith should keep records of that search, since it can matter later.

Quebec: Reasonable Notice Under the Civil Code

Quebec is a civil law jurisdiction, so the Bardal case does not apply there directly. Instead, article 2091 of the Civil Code of Quebec gives either party to an indeterminate term employment contract the right to end it with reasonable notice, taking into account the nature of the employment, the specific circumstances in which it is carried out, and the duration of the employment. If an employer fails to give reasonable notice, the employee is entitled to compensation instead.

The factors Quebec courts look at track many of the same themes as the Bardal factors, including the nature and seniority of the position, the employee's age and length of service, and how easily the employee could find similar work. As in the rest of Canada, this is layered on top of, and separate from, the minimum notice set out in Quebec's labour standards legislation.

What This Means for You

If you have been dismissed without cause, the size of your notice entitlement depends heavily on your specific facts, including your age, your role, your length of service, the state of the job market in your field, and whatever your employment contract actually says about termination. A short, generic guideline can point you in a rough direction, but it cannot substitute for a review of your actual documents.

Before making any decisions, gather your offer letter or employment contract, your recent pay records, and your termination letter. Provinces also apply limitation periods to wrongful dismissal claims, so it is worth speaking with an employment lawyer or a legal clinic in your province promptly rather than waiting. See Canadian law by province for province specific resources.

Disclaimer

This article provides general information about reasonable notice and the Bardal factors in Canadian employment law. It is not legal advice and does not create a lawyer-client relationship. Notice periods depend heavily on individual facts and can vary by province. Consult a licensed employment lawyer or legal clinic in your province before making decisions about a dismissal or a termination clause.