Notice in Employment Law & the Bardal Factors

In Canadian employment law, the concept of reasonable notice plays a crucial role in determining the amount of notice or pay in lieu of notice (also known as severance) that an employer must provide to an employee upon termination without cause. The Bardal factors are a set of considerations that are used by the Courts to determine the appropriate length of reasonable notice in each case. Understanding these factors is essential for both employers and employees to navigate the legalities of termination in the Canadian employment landscape.

It is important to note that, generally speaking, the Bardal Factors do not apply if your employment is for a fixed term, there is an employment agreement that specifies the notice an employee is entitled to receive in the event that their employment is terminated, or if an employee is dismissed with cause.

What are the Bardal Factors?

The Bardal factors come from the case of Bardal v. Globe & Mail Ltd, a decision by the Ontario High Court in 1960. In this case, Justice McRuer outlined several factors that should be considered when determining the reasonable notice period in cases of wrongful dismissal. While the list is not exhaustive, these factors have since been widely adopted by Canadian courts and have become the standard framework to utilize for assessing reasonable notice in employment law cases.  The specific factors to consider are:

  • Length of Employment: One of the most important Bardal factors is the length of the employee’s service with the employer. The longer an employee has worked for an employer, the longer the reasonable notice period is likely to be. Courts often consider the employee’s years of service as an indication of their loyalty and commitment to the employer.
  • Nature of the Employment: The nature of the employee’s position and responsibilities is another important factor in determining reasonable notice. Higher-level executives or employees with specialized skills may be entitled to a longer notice period due to the time it may take to find comparable employment in their field due to less availability of comparative positions.
  • Age of the Employee: The age of the employee at the time of termination is also a significant factor that the Courts will consider. Older employees may have a harder time finding new employment compared to younger employees, and as a result, may be entitled to a longer notice period to allow for retraining or transition to a new career.
  • Availability of Similar Employment: Courts will also consider the availability of similar employment opportunities in the employee’s field or industry. If the job market an employee works in is competitive and it is difficult for the employee to find new employment, a longer notice period may be warranted than that of an employee whose field or industry has readily available employment.
  • Special Circumstances: Finally, courts may take into account any special circumstances that are unique to the case at hand. This could include factors such as inducement by the employer to leave a previous job, promises of job security, or any other relevant considerations that may impact the employee’s ability to find new employment.

It is important to note that the Bardal factors are not exhaustive, and courts may consider additional factors depending on the specific circumstances of each case. Employers should be aware of these factors when terminating an employee without cause to ensure that they comply with their legal obligations.

Considerations for Employers and Employees

For employees, understanding the Bardal factors can help them assess whether the notice period offered by their employer is fair and reasonable based on their individual circumstances. If an employee believes they have been wrongfully dismissed or are entitled to a longer notice period, they may seek legal advice to protect their rights and seek appropriate compensation.

For employers, it is important to understand that there is no “one size fits all” approach to reasonable notice periods and that termination of an employee and that employee’s entitlement to notice or pay in lieu thereof will depend heavily on the specific circumstances of each case.

Experienced Employment Lawyers

Knowing what the Bardal Factors are one thing but understanding how they are practically applied by the Courts in reaching decisions as to what constitutes appropriate notice is another. The existence of an employment contract can impact an employee’s rights and an employer’s obligation heavily in this context and having any contract reviewed by an experienced employment lawyer is imperative.

The lawyers at Taylor & Blair LLP can meet with you to review your circumstances and relevant documents (like any employment contract) and let you know what an appropriate notice period would be in your specific circumstances. Contact us to schedule a consultation today.