In the absence of an employment agreement that expressly
sets out a notice period upon termination, employees who are
terminated without just cause are entitled to a notice period or
pay in lieu of notice from their employers in accordance with the
common law. If an appropriate notice period is not given,
employees may sue for wrongful dismissal.
The key case setting out the factors to be considered when
determining the applicable common law notice period is Bardal
v. Globe and Mail,  O.J. No. 149. These factors
include the employee's age, length of service, character of
employment, and the availability of similar employment in the
context of the employee's experience, training and
Two new decisions out of the Ontario Superior Court of
Justice are recent examples of the application of the Bardal
factors to determine the applicable notice period.
Lalani v. Canadian Standards Assn.,
2015 ONSC 7634 (December 10, 2015) involved a 60 year old employee
with an Electrical Technician diploma. He worked with the
Defendant employer for 39 continuous years, which was the
employee's entire working life. For the first 28 years of
employment, he worked as a skilled technical employee or front-line
supervisor. He then held middle management positions for the
remaining 11 years of his employment. He was terminated
without just cause.
The Court pointed out that a notice period in excess of 24
months is generally only awarded in exceptional
circumstances. The employee argued that this was an
exceptional circumstance warranting additional notice because he
worked for the Defendant employer for his entire life. This
argument was not accepted, however, because the duration of
employment was already a considered factor. The Court
concluded that a notice period of 24 months was
Kurtz v. Carquest Canada Ltd., 2015
ONSC 7997 (December 21, 2015) involved a 50 year old employee with
a Master's degree in Business Administration. He had been
employed by the Defendant employer for 5.5 years. He began as
a supervisor and was eventually promoted to senior management as
Director of Operations at a distribution centre in
California. When this centre closed, he was transferred
to another of the employer's distribution centres in Ontario to
fulfill the same role. It was from that centre that he was
terminated. The Defendant employer alleged just cause for
termination, but this was not made out, so the employee was
entitled to damages for reasonable notice.
The Court noted that the employee's age would not
significantly increase the notice period and his tenure was only
modest. The character of his employment as senior management
and the necessity of the Employee having to relocate back to the
United States were factors that warranted an increased notice
period. The Court concluded that the appropriate notice
period was eight months.
Lessons for Employers
Employees who are terminated without just cause, who do
not have an employment contract or who have a contract that is
silent in regard to notice of termination, are entitled to notice
or pay in lieu of notice consistent with the common law. The
applicable notice period ranges from the statutory minimum as set
out in labour standards legislation up to 24 months, with the
possibility of a greater notice period in extraordinary
circumstances. Employees do have a duty to mitigate during
the notice period and damages may be reduced in accordance with
income earned by the employee during that time.
Employers are advised to enter into written employment
contracts with employees that expressly set out notice provisions
on termination and require the employee to mitigate any damages.
Such contracts can provide much needed clarity to the
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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