Subscribe to our newsletters
Bardal Factors Explained: How Courts Calculate Severance in Ontario
When you are dismissed without cause in Ontario, your employer must provide reasonable notice or pay in lieu. The Employment Standards Act, 2000 sets a minimum. But courts calculate common law reasonable notice using a separate framework called the Bardal factors, named after the landmark 1960 case Bardal v. Globe and Mail Ltd. Understanding how these factors apply to your situation is often the difference between accepting an inadequate offer and recovering what you are actually owed.
There is no fixed formula. Courts weigh the factors together based on your specific circumstances. The result is frequently significantly higher than the ESA minimum and has no fixed cap. For many employees, particularly those who are older or more senior, common law notice can reach twelve to twenty-four months or more.
Were you terminated without cause and offered only the ESA minimum?
Most initial severance offers reflect only the statutory floor. Once you sign a release you give up your right to pursue more. Get advice before you sign anything the gap between what you were offered and what the Bardal factors may entitle you to can be substantial.
Call: 1-800-771-7882 Get Your Severance ReviewedThe four Bardal factors explained
Character of employment
The nature, seniority, and responsibilities of your role. Senior, specialized, or managerial positions typically attract longer notice periods because comparable positions are harder to find and the employee's skills are more specific to a particular context.
Length of service
The total duration of your employment with the same employer. Longer service generally results in longer notice periods. Courts recognize that long-serving employees have invested significantly in their employer and face greater disruption from sudden dismissal.
Age at dismissal
Older employees typically receive longer notice periods because they face greater difficulty transitioning to new comparable employment. The older you are at the time of dismissal, the more courts recognize the challenge of finding equivalent work quickly.
Availability of similar employment
The state of the job market, industry conditions, and the realistic availability of comparable positions given your experience, training, and qualifications. Where the market for your skills is limited, specialized, or contracting, courts may award a longer notice period.
Additional factors courts consider beyond Bardal
While the four Bardal factors form the foundation of the reasonable notice calculation, Ontario courts regularly consider additional circumstances that can increase or decrease the notice period.
How the Bardal factors affect your severance in practice
Were you offered only the ESA minimum on termination?
The ESA caps notice at 8 weeks regardless of how long you worked. Common law has no cap. For many employees the gap is months of additional compensation. Get your severance reviewed before you sign anything.
Get Your Severance Reviewed Or call us: 1-800-771-7882Signs your severance offer may not reflect the Bardal factors
Why online severance calculators are not enough
Online severance calculators apply the four Bardal factors in a simplified way to produce an estimate. They do not account for the additional factors courts regularly consider, the enforceability of termination clauses in your specific contract, whether inducement occurred, bad faith conduct by the employer, or industry-specific market conditions. They also cannot assess whether the total package including how bonuses, commissions, and benefits are treated accurately reflects your full entitlement. A calculator estimate is a starting point, not a substitute for legal advice.
Frequently asked questions about the Bardal factors in Ontario
What are the Bardal factors in Ontario?
The Bardal factors are the four principles Ontario courts use to calculate common law reasonable notice when an employee is dismissed without cause. They come from Bardal v. Globe and Mail Ltd. (1960) and cover the character of employment, length of service, age at dismissal, and availability of similar employment. Courts weigh these factors together on a case-by-case basis rather than applying a fixed formula.
Do the Bardal factors determine how much severance I get?
They are the primary framework courts use to calculate common law reasonable notice, which determines how much severance you may be entitled to beyond the ESA minimum. Courts also consider additional circumstances beyond the four factors depending on your specific situation. The only way to know what your severance should be is to have your circumstances assessed by a lawyer.
Is there a maximum notice period under the Bardal factors in Ontario?
No. Unlike the ESA, which caps notice at eight weeks, common law reasonable notice calculated using the Bardal factors has no fixed maximum. For long-serving senior employees in specialized roles, notice periods of eighteen to twenty-four months or more are not uncommon. The specific circumstances of each employee determine the appropriate range.
Can my employer limit my severance to the ESA minimum?
Only where your employment contract contains a valid, enforceable termination clause that clearly limits your entitlement to the ESA minimum. Many such clauses are unenforceable under current Ontario case law. If your contract contains a termination clause, have it reviewed by a lawyer before accepting any offer based on it. An unenforceable clause means your entitlement defaults to common law reasonable notice calculated using the Bardal factors.
Are the Bardal factors the same in BC and Ontario?
Yes. The Bardal factors and the underlying framework for calculating common law reasonable notice are the same across Canada. Both Ontario and BC courts apply the same four factors and the same contextual analysis. Cases from either province are regularly cited in courts across the country. The ESA minimums differ between provinces but the common law framework operates identically.
Should I sign my severance offer without getting advice?
No. Once you sign a release you waive your right to pursue additional compensation. Most initial severance offers reflect only the ESA minimum and do not account for what the Bardal factors may entitle you to. Employers sometimes set short deadlines to create pressure to sign quickly. There is almost always time to have a package reviewed. Get legal advice before signing anything.
Were you offered a severance package in Ontario? Get it reviewed before you sign.
Most packages reflect only the ESA minimum. Common law reasonable notice calculated using the Bardal factors is frequently significantly higher. Our team advises employees across Ontario on severance pay entitlements and wrongful dismissal claims. Contact us for a confidential consultation.
Call us at 1-800-771-7882 or fill out the form below and we will be in touch.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©