A recent decision of the Ontario Superior Court of Justice is a
good reminder that a number of factors may be relevant to
determining "reasonable notice" of termination under the
common law. In the recent case of Fraser v. Canerector
Inc. ("Fraser"),1 the Court
increased the period of reasonable notice owed to a senior employee
by 50% because his termination occurred in June.
What is reasonable notice?
Absent a binding employment agreement with enforceable
termination provisions, the common law in Canada requires that
employers provide employees with "reasonable notice" that
their employment will be terminated (or pay in lieu of such notice)
in the absence of "cause". Such "reasonable
notice" often exceeds the minimum statutory notice and
severance pay requirements under applicable employment standards
legislation, and it is intended to provide the employee with
sufficient time to secure alternate comparable employment.
In determining reasonable notice, courts generally rely upon the
factors set out in the leading case of Bardal v. Globe &
Mail Ltd. ("Bardal").2 The most
commonly referenced factors from Bardal are age, length of
service, position (i.e., character of the employment) and
compensation. However, Bardal is clear that reasonable
notice must be decided based upon the facts of each particular
case, including the availability of similar employment. The
Fraser case is a good example of this principle.
"Time of the year" as a consideration in
In Fraser, the termination of the employee's
employment occurred during the summer, and the court increased the
reasonable notice period on this basis. Mr. Fraser was a 46 year
old, senior executive, who worked for the defendant for 34 months.
Justice Dunphy considered the employee's prospects of finding
alternate employment to be strong, which was supported by the fact
that Mr. Fraser actually secured new employment within
approximately 10 weeks.
However, Justice Dunphy found that, in the circumstances of this
case, the fact that the termination occurred in the summer was
relevant, as follows:
I find that for a man of Mr. Fraser's age and level of
responsibility but relatively short years of service, I must also
account for the time of year when his employment was terminated in
assessing reasonable notice. Mr. Fraser's employment was
terminated in June and it was quite foreseeable that hiring
decisions at his level might have needed to be delayed somewhat due
to the summer months in order to account for vacation schedules of
key decision-makers. While his term of service might normally
suggest a relatively shorter period of notice, timing plays a
bigger role where notice is short. While timing in fact was no
impediment in this case (Mr. Fraser having found new employment by
August), that is a conclusion enabled by hindsight.
Therefore, Justice Dunphy concluded that 4.5 months of notice
was reasonable in this case, whereas absent any consideration of
the time of year he would have awarded three months based upon the
other Bardal factors.3
Lessons for Employers
Many employers assess reasonable notice based upon a "rule
of thumb", such as one month per year of service for senior
employees and two weeks per year of service for lower level
employees. The courts have repeatedly rejected this approach. Other
employers recognize the need to consider the employee's
particular circumstances, but only think about the four basic
characteristics outlined above (i.e., age, length of service,
position and compensation).
Fraser is a good reminder that any factor(s) which
affect an individual's ability to obtain alternate employment
could be taken into consideration when assessing reasonable notice.
As indicated by Justice Dunphy:4
The principles to be applied are simple to state if
complicated to apply. As is often said, each case is determined on
its particular facts. The question of reasonable notice is
quintessentially a matter of mixed fact and law that requires the
judge hearing the case to apply his or her judgment to the
assessment of a number of factors many of which tend to pull in
opposite directions. The end result is more art than science but
must be one that is fair in all of the circumstances.
Given the complicated analysis required to assess reasonable
notice, it is important to seek legal advice when contemplating any
termination. Furthermore, for employers who wish to avoid the
uncertainty of "reasonable notice", employment agreements
with well-drafted termination provisions are highly
1 Fraser v Canerector Inc., 2015 ONSC 2138 [Fraser]
2 Bardal v Globe & Mail Ltd., (1960) OWN 253 (Ont HC) at para
3 Supra note 1 at para 38.
4 Ibid at para 32.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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