Determining Reasonable Notice
Contrary to common opinion and belief, the courts have shifted their determinations of a dismissed employee’s entitlement to reasonable notice of dismissal from a “rule of thumb” to a calculated approach. Today, the former one month per year of service “rule of thumb” has been replaced by the decision in Bardal v. Globe & Mail Ltd., 1960 CanLII 294.
Specifically, the courts now state that the reasonableness of the notice to an employee must be decided with reference to each particular case, by examining certain common-law (or judge-made law) factors, such as the employee’s length of service, character of the employment, age and the availability of similar employment.
These four factors, now commonly referred to as the “Bardal factors” have been recognized by the Supreme Court of Canada as the proper method to be used when calculating a dismissed employee’s reasonable notice period, as noted in Keays v Honda Canada Inc., 2008 SCC 39 at paragraph 28.
Further, since the approach a court will use to determine a reasonable notice period is flexible, each case is dependent on its own particular facts. It is important to note that the weight to be given each Bardal factor will vary according to the circumstances of each case, with the judge required to exercise judgment in determining which factors are of particular importance, as per Paquette v TeraGo Networks Inc., 2015 ONSC 4189 at paragraph 28.
Have you or someone you know been impacted by a dismissal? Do you have questions about your situation? Contact Darren Frank, Associate Lawyer at Lockyer + Hein LLP to learn more: dfrank@lhlaw.ca / 905.798.7489
