ESA Minimums vs. Common Law Notice

The Difference in Ontario Notice

When you are fired without cause, you are entitled to notice or pay in lieu of notice. The amount can differ significantly depending on the law used.

• Employment Standards Act (ESA) — This is the absolute minimum (1 week per year, capped at 8 weeks).
• Common Law Notice — This is much higher (often 1 month per year, up to 24 months) and applies to most employees.

The Bardal Factors

Courts determine common law notice based on four main factors:

1. Length of Service — Longer-term employees get more notice.
2. Character of Employment — Management vs. clerical.
3. Age of Employee — Older employees often get more notice because it's harder to find a new job.
4. Availability of Similar Employment — High-demand vs. niche roles.

The Importance of Your Contract

• Termination Clauses — Most employers try to limit notice to ESA minimums in your contract.
• Enforceability — Many termination clauses are poorly drafted and 'unenforceable.' If a single word is wrong, the clause is invalid and common law applies.
• Severance Pay — In addition to notice, some long-term employees are entitled to ESA 'severance pay' (another 1 week per year).