What Are Bardal Factors? How Ontario Courts Calculate Common-Law Reasonable Notice
If you were dismissed without cause in Ontario, the Employment Standards Act minimums are usually only a fraction of what you may actually be owed. Common-la...
Frequently Asked Questions
What is the difference between ESA termination pay and common-law reasonable notice?
ESA termination pay is a statutory minimum capped at 8 weeks. Common-law reasonable notice is the broader amount calculated using the Bardal factors and is usually significantly higher than the ESA minimum. The employee is generally entitled to whichever is greater. A valid termination clause in the employment contract can limit the employee to the ESA minimum, but many such clauses are unenforceable after Waksdale v. Swegon.
Is there a formula for calculating common-law notice in Ontario?
There is no formula. The rough rule of thumb of approximately one month per year of service is a starting point, but each of the four Bardal factors (character of employment, length of service, age, availability of similar employment) can push the number up or down. Courts decide each case individually using comparable decisions as a reference point.
Is there an upper limit on common-law notice in Ontario?
The Ontario Court of Appeal in Lowndes v. Summit Ford Sales Ltd. described the rough upper limit as 24 months, except in exceptional circumstances. Awards above 24 months are possible (Dawe v. Equitable Life confirmed this) but require unusual factors such as very long service, advanced age, highly specialized roles, and a contracted job market.
How long do I have to bring a wrongful-dismissal claim?
Under section 4 of the Limitations Act, 2002, a wrongful-dismissal claim must generally be brought within two years of the dismissal date. After that period the claim is barred.
Should I sign the release the employer gave me?
Not without having it reviewed first. Signing the release in exchange for the offered amount waives your right to claim more under the common law. The employer is required to pay the ESA minimum regardless of whether you sign. The deadline imposed in the letter is almost always negotiable. The most important practical step is to have the termination package reviewed before signing.
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