Judging Reasonable Notice
The law is complex, but the principal is clear...
In Canada, when an employer wants to end an employment relationship for reasons other than just cause, the employee is generally entitled to notice of termination or pay in lieu.
In these cases, or in cases where the employee successfully argues constructive dismissal, the notice period as well as any entitlement to severance and other compensation, might be determined by contract or statute. Those outcomes and the employee's corresponding entitlement to compensation, however, can be replaced with or supplemented by the common law approach to determining "reasonable notice".
Courts begin their analysis of what constitutes "reasonable notice" by looking at the 1960 ruling in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145:
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
These "Bardal Factors", as they have come to be known, represent the starting point in determining reasonable notice. And since there are over 1,000 rulings from Canadian courts expressly laying out precisely how the factors were applied, everyone - from employment lawyers to employers to employees - can look through the rulings and form a pretty good guess of how a court might rule.
This is where we come in.
The purpose of this site is to mathematically analyze wrongful dismissal court findings on these four factors:
- length of service,
- character of employment,
- availability of similar employment
And from that analysis (which is done by algorithm and not by a lawyer), we want to make it easy for everyone to compare their Bardal Factor situation to related court rulings, so we built this great tool! This is so much more than a severance pay calculator.
You can begin with the Bardal Factors, but remember that the law is complex so don't assume it provides all the answers.
Data-driven insights are a valuable and increasingly essential part of legal analysis, and can bring parties around to a shared understanding of what's reasonable, but when it comes to settling a dispute or winning in court, it's advocacy and not math that will carry the day.
[Updated 17 November 2017]