By: Madeline Mackenzie

What is reasonable notice?

In Ontario, an Employee can be terminated with or without cause. If an employee has participated in serious workplace misconduct or is habitually negligent, they can have their employment contract terminated for just cause. However, an employer is also entitled to terminate an employment contract without a reason as long as they give notice of their intention to do so. In practice, employers will often pay the terminated employee what they would have earned had they continued to work during this notice period, which is known as payment in lieu of notice.

Notice comes in two forms: statutory minimum notice and common law reasonable notice. The statutory minimum notice period a terminated employee is entitled to is determined by the Employment Standards Act (ESA), which states they are entitled to one week per year of service for up to eight weeks. However, the statutory minimum notice only applies if the employment contract explicitly states that the employee is only entitled to it and nothing more. Otherwise, and often in practice, a terminated employee is usually entitled to the common law reasonable notice which is significantly more than the statutory minimum.

How is reasonable notice calculated?

Since reasonable notice is basically an advanced warning of termination, notice is calculated in units of time. Determining how to calculate reasonable notice is often an issue brought up in courts because test is highly fact specific and what is reasonable is often difficult to determine.

The leading case on calculating reasonable notice is Bardal v. Globe & Mail Ltd,[1] In this case the court stated:

“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”.[2]

Therefore, the following “Bardal Factors” should be considered when determining reasonable notice periods:

·       The character of the employment (i.e. what the employee’s position was and what responsibilities came with that position)

·   The employee’s length of service

·   The employee’s age

·   The availability of similar employment, taking into account the employee’s experience, training and qualifications

The Supreme Court of Canada has endorsed these factors, while also saying that the list is not exclusive, and in certain circumstances, other considerations may be involved.[3] Courts will often go through these factors, then look to previous court decisions that involved similar facts and compare the circumstances to decide what the appropriate notice is for this particular employee.

How, and why, is it unpredictable?

The Bardal factors have been applied in a wide range of case law that has not always been consistent or predictable. For this reason, it can be frustrating to both lawyers and clients.  The beginning of the famous Bardal paragraph, where McRuer C.J.H.C. states “there can be no catalogue laid down as to what was reasonable notice in particular classes of cases”, emphasizes the unpredictable nature of reasonable notice assessments. The Ontario Court of Appeal has also acknowledged that determining reasonable notice is an art and not a science.[4] Some judges may weigh certain factors more heavily in their analysis than others. As well, judges may consider and apply previous cases differently. Two judges may not agree, for example, that older employees deserve more notice, but in the end, they may still award the same notice period.[5]

Additionally, many of the factors are interdependent. For example, there is typically a correlation between age and experience, or age and employment duration, because the older you are, the more likely it is you have worked at this job for longer.[6] Once again, this is frustrating for lawyers, clients, and self-represented litigants. In order to determine whether a wrongful dismissal case is worth pursuing, consistency and predictability are important.

While the Bardal factors can lead to issues with predictability and consistency, they have the advantage of allowing for a high degree of flexibility.  Flexibility is important for two reasons. The first, is that each employment relationship has its own circumstances and complexities. If the law did not let judges apply the factors with flexibility, then it would result in unfair decisions for many people. For example, employees who are persuaded to leave their former job to work with a new employer may expect greater job security. If they are suddenly let go, they should be awarded a longer period of notice because their reliance on their new employment likely informed their decision to leave their prior job. Age or managerial position may also be significant in some cases, but less significant in others. For example, being over 50 years old can make it more difficult to re-enter the job market. However, there are some situations where the older employee has more job skills, and therefore, they actually may find it easier to secure new employment. This again requires an acknowledgment of how highly interrelated the factors are.

This leads into the second reason why flexibility is crucial. It allows for changing social and economic circumstances. For example, given the current economic downturn from COVID-19, flexibility is beneficial for both employees and employers when providing notice to end the employment contract. Additionally, the rise of technological advances challenges our perception that unskilled workers deserve less notice than skilled workers, given their jobs could be threatened to be replaced by automation. Therefore, a rigid rule would not be fair to everyone when faced against changing social and economic contexts.

What does this mean for me if I am terminated?

If your employer lets you go from your job, unless your employment contract states otherwise, you are entitled to reasonable notice, or pay in lieu. Anything less would be a wrongful dismissal. Termination of the employment contract is not a rare event, and therefore many people are left asking themselves what notice period they are entitled to.

The MyOpenCourt Termination Compensation Calculator, that use analytical data of previous cases to predict notice periods for future cases can provide you help in answering these kinds of questions.

[1] Bardal v. Globe & Mail Ltd., 1960 OHCJ 144 [Bardal].

[2] Bardal, supra note 1, at para 21.

[3] Machtinger v. HOJ Industries Ltd., 1992 SCC 892.

[4] Minott v. O’Shanter Development Co., 1999 ONCA 1.

[5] Samuel Dahan, Jonathan Touboul, Jason Lam & Dan Sfedj, “Predicting Employment Notice Period with Machine Learning: Promises and Limitations”.

[6] Ibid.