If you have been terminated without cause in Ontario, a key question is often how much notice you should receive (or pay in lieu of notice). In many wrongful dismissal cases, Ontario courts assess common-law reasonable notice using the Bardal factors, originating from Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC). CanLII link (Bardal): https://www.canlii.org/en/on/onsc/doc/1960/1960canlii294/1960canlii294.html
This article explains the Bardal factors, how they are used, and why the analysis is always fact-specific. If you need advice about your situation, Z Legal’s Ontario employment law team can review your termination package and help you plan next steps.
Contents •
What are the Bardal factors? The Bardal factors are the main considerations Ontario courts use to estimate a reasonable notice period at common law. There is no strict formula. Instead, courts weigh the circumstances to estimate how long it should reasonably take the employee to find comparable work. The four core Bardal factors
- Character of employment (role and seniority)
This looks at the nature of the job, including the employee’s role and level of seniority, leadership responsibilities, scope of duties, specialization, and how transferable the role is to comparable positions. • More senior roles (for example, supervisory, managerial, or executive positions) and highly specialized roles may support longer notice where comparable jobs are harder to find. • Courts generally focus on the actual work and market realities, not just job titles.
- Length of service
Length of service is often a major driver in reasonable notice assessments. Longer service can support a longer notice period, especially where the employee built their career with one employer. • Shorter service does not automatically mean minimal notice if other Bardal factors point to re-employment difficulty. • Long service can carry extra weight where the employee’s experience is closely tied to the employer or industry.
- Age
Age may matter because it can affect employability and the time needed to secure comparable work, particularly for older employees. • Courts may consider whether the employee’s age creates real barriers to re-employment. • This factor is always considered in context with role, market conditions, and the employee’s experience.
- Availability of similar employment
Courts look at the availability of comparable work for someone with the employee’s training, education, and experience, and the realities of the local job market. • Industry conditions, hiring cycles, and regional availability can affect this factor. • Highly specialized skills can reduce the number of comparable opportunities, potentially increasing notice. Other factors courts may consider (beyond Bardal) The Bardal factors are the starting point, but they are not exhaustive. Depending on the facts, courts may consider additional circumstances that affect employability or fairness in assessing reasonable notice. • Inducement or recruitment (for example, being lured away from secure employment). • Economic or industry downturns that realistically limit comparable opportunities. • Unique barriers to re-employment (for example, specialized skills that are not easily transferable). • Contract issues, including whether an employment contract contains an enforceable termination clause that limits notice. • Exceptional circumstances where the notice period may exceed 24 months (rare and highly fact-specific).
Recent Ontario Court of Appeal Cases Illustrating Bardal Factors
The Ontario Court of Appeal frequently reviews decisions involving the application of the Bardal factors. The following cases provide recent examples of how these factors are considered in determining reasonable notice:
Singer v. Nordstrong Equipment Limited, 2018 ONCA 364
In Singer v. Nordstrong Equipment Limited, the appellant, André Singer, was 51 years old and had been employed for 11 years, including 4 years as President and General Manager of the East Division, when his employment was terminated without just cause (Singer v. Nordstrong Equipment Limited, 2018 ONCA 364 (CanLII), [para 1]). The motion judge awarded 17 months’ salary in lieu of reasonable notice (Singer v. Nordstrong Equipment Limited, [para 3]). The Court of Appeal found no error in this award, noting that the motion judge properly considered all Bardal factors in a holistic manner and did not overemphasize the character of employment (Singer v. Nordstrong Equipment Limited, [para 6]). The judge’s analysis demonstrated consideration of age, length of service, and the availability of similar employment, particularly for older, long-term employees who may face a competitive disadvantage in securing new employment (Singer v. Nordstrong Equipment Limited, [para 7]). The court also considered the appellant’s mitigation efforts and inability to find comparable employment (Singer v. Nordstrong Equipment Limited, [para 8]).
Humphrey v. Mene Inc., 2022 ONCA 531
In Humphrey v. Mene Inc., Ms. Humphrey, a Chief Operating Officer earning $90,000 annually, was terminated after approximately three years of service and remained unemployed at the time of the motion for summary judgment (Humphrey v. Mene Inc., 2022 ONCA 531 (CanLII), [para 1]). The motion judge awarded Ms. Humphrey damages in lieu of 12 months’ notice (Humphrey v. Mene Inc., [para 2]). The Court of Appeal affirmed that the motion judge properly considered and applied the Bardal factors (Humphrey v. Mene Inc., [para 6]). These factors included Ms. Humphrey’s age at termination, her length of service, her compensation, the character of her employment, and her anticipated difficulty in finding comparable employment (Humphrey v. Mene Inc., [para 23]). The Bardal factors generally encompass age, length of service, character of employment, and the availability of similar employment, considering the employee’s experience, training, and qualifications (Humphrey v. Mene Inc., [para 45]).
Lynch v. Avaya Canada Corporation, 2023 ONCA 696
In Lynch v. Avaya Canada Corporation, John Lynch, a professional engineer, was terminated due to company restructuring after working for Avaya and its predecessor since May 1982, representing very lengthy service (Lynch v. Avaya Canada Corporation, 2023 ONCA 696 (CanLII), [para 1]). The motion judge awarded Mr. Lynch 30 months’ reasonable notice (Lynch v. Avaya Canada Corporation, [para 3]). The Court of Appeal dismissed Avaya’s appeal, confirming that the motion judge’s award was not in error (Lynch v. Avaya Canada Corporation, [para 11]). The court noted that while there is no absolute upper limit on reasonable notice, exceptional circumstances are generally required to justify a notice period exceeding 24 months (Lynch v. Avaya Canada Corporation, [para 10]). In Mr. Lynch’s case, the exceptional circumstances included his job specialization, unique skills, lengthy employment, patent development, status as a key performer, and limited local job opportunities (Lynch v. Avaya Canada Corporation, [para 13], [para 14]). The Bardal approach requires a case-by-case consideration of factors such as the character of employment, length of service, age, and the availability of similar employment (Lynch v. Avaya Canada Corporation, [para 9]).
Reasonable notice vs. ESA minimum entitlements
Ontario employees may have minimum entitlements under the Employment Standards Act, 2000 (ESA), such as termination pay and, in some cases, severance pay. Common-law reasonable notice can be higher than ESA minimums, but it depends on the contract and the facts. If a termination clause is enforceable, it may limit the employee to ESA minimums. If not, common-law reasonable notice may apply.
Because the ESA/common-law analysis is technical and outcomes can turn on the wording of the employment agreement, it is often worth obtaining legal advice before signing a release.
Practical tips before you sign a severance package
• Ask for the offer in writing and request time to review it. • Check whether the package includes a release, and understand what rights you are giving up. • Review the employment contract for any termination clause and whether it is enforceable. • Gather key documents (offer letter, job description, performance reviews, bonus/commission terms, and benefit information). • Consider whether bonus, commission, or benefits should continue through the notice period.
Need help with a termination or severance package?
Z Legal advises employees and employers on wrongful dismissal claims, severance negotiations, and employment contract review across Ontario. If you have been terminated or received a severance offer, we can help you understand how the Bardal factors may apply and whether your package is within a reasonable range.
Disclaimer: This article is provided for general information only and does not constitute legal advice. Employment law outcomes are highly fact-specific, and reasonable notice (and related entitlements) can vary significantly depending on the circumstances. If you need advice about your situation, contact a lawyer for assistance.