Law is full of its share of misconceptions. For instance, many
people talk about a "rule of thumb" that provides that a
terminated employee is entitled to one month per year of
employment. Despite this, Courts across Canada have emphatically
rejected the notion that there is rule of thumb for determining
appropriate notice periods for employees.
The starting point for determining what constitutes reasonable
notice is the landmark decision of Bardal v Globe and Mail
Ltd., (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), which suggested
the factors to be considered include, but are not limited to:
character of employment, length of service, age of the employee,
and the availability of similar employment in light of his
expertise, training, and qualifications.
One of the earliest and most prolific rejections of the
"rule of thumb" was by Justice Laskin in the Ontario
Court of Appeal case Minott v O'Shanter Development Company
Ltd.,  OJ No 5, where he found the rule of thumb suffers
from several deficiencies; most unfavourable was that it
de-emphasized the remaining Bardal factors. Thus, Justice
Laskin notes, "in my opinion the rule of thumb approach is not
warranted in principle, nor is it supported by authority."
The Saskatchewan Court of Appeal in Capital Pontiac Buick
Cadillac GMC Ltd v Coppola, 2013 SKCA 80, was equally
dismissive. Justice Caldwell warned employers of the dangers of
relying on the rule of thumb, stating:
then, while employers may wish to use the "one month's
notice per year of service" rule of thumb as a guideline in
their day-to-day decision-making given its apparent facility, they
do so at their own peril because the rule is not supported by the
jurisprudence and is inconsistent with Bardal.
Alberta courts have also rejected the formula. The court in
Milsom v Corporate Computers Inc., 2003 ABQB 296,
It is clear from the
case law that Courts cannot apply rules of thumb to set the length
of notice required in an individual case: each contest between an
employer and an employee deserves individual assessment in the
circumstances of the specific case and in light of then current
social policy demands.
So, while legal myths like this will continue to fester, it is
important to remember that there is no formula or rule of thumb to
determining reasonable notice for all type of employees. Each case
must be viewed on an individual basis taking into account all
relevant factors, not just length of service.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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