Bardal v. Globe & Mail: How Courts Set Reasonable Notice

The case

Mr. Bardal had worked for the Globe and Mail for about 16 years and was its advertising manager when he was let go without cause. The court had to decide how much notice he should have received. Chief Justice McRuer held that there could be no catalogue of rules for every case: reasonableness had to be decided with reference to each particular case. He awarded twelve months' salary.

The Bardal factors

• The character of the employment: the role, its seniority and how specialized it is. Courts today give this factor less weight than they once did, recognizing that finding new work can be hard at any level.
• The length of service with the employer.
• The age of the employee: older workers usually take longer to find comparable work.
• The availability of similar employment, having regard to the employee's experience, training and qualifications, often looked at in light of the job market at the time.

What it means today

Courts still start with Bardal. Other circumstances can also matter, such as whether the employee was recruited away from a secure job (inducement), the state of the economy, and a disability that makes a job search harder. Awards for long-service, older employees have often been in the range of 18 to 24 months, and courts have said that exceeding 24 months should be reserved for exceptional cases, though it does happen.

Notice can be given as working notice, as pay in lieu, or as a mix. A dismissed employee must also make reasonable efforts to find new work (the duty to mitigate), and money earned during the notice period can reduce what the employer owes.

Practical steps

1. Don't sign a release on the spot. Ask for the offer in writing and take time to review it.
2. Check your contract's termination clause: if it is unenforceable, Bardal notice applies instead.
3. Keep a record of your job search: applications, interviews and replies.
4. Get advice on what a court would likely award, using recent cases with similar facts.

Common questions

Is there a rule of thumb like one month per year?

No. Courts have rejected a fixed formula. Length of service matters, but so do age, the role and the job market.

Does Bardal apply if I'm in a union?

Generally no. Unionized employees are covered by the collective agreement and the grievance and arbitration process.

Photos from Pexels: A Lady Justice statue holding the scales · A law book beside the scales of justice on a wooden desk.

This article is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.