Bardal Factors Explained: How BC Courts Decide Reasonable Notice and Severance
When an employee is dismissed without cause in British Columbia, employers must provide reasonable working notice or pay instead of notice.
The Employment Standards Act (ESA) sets out minimum notice periods, but these are often much shorter than what courts will award under the common law. In many cases, a terminated employee’s actual entitlement, known as reasonable notice, is months or even years longer than the ESA minimum.
So how do courts decide what is fair? The answer lies in the Bardal factors, a flexible set of principles courts use to determine what constitutes “reasonable notice” in each case. These factors are highly fact-specific and can significantly increase an employee’s entitlements compared to statutory minimums.
This article explains how the Bardal test works, how BC courts apply it, and what employers should consider when making termination decisions.
What Are the Bardal Factors?
The starting point is the landmark case Bardal v. Globe & Mail Ltd. (1960), where the court stated that “there can be no catalogue laid down as to what is reasonable notice in particular classes of cases.” Instead, the length of notice must be determined based on the circumstances of each case.
The four main Bardal factors are:
- Character of employment: The nature, seniority, and responsibilities of the role.
- Length of service: Longer service generally results in more notice.
- Age of the employee: Older workers are often awarded more notice because finding comparable work is harder.
- Availability of similar employment: Courts consider the job market, transferable skills, and employment prospects.
Importantly, reasonable notice is not calculated by a formula (like “one month per year of service”). Instead, courts weigh all the factors to arrive at a fair and individualized outcome.
How BC Courts Apply the Bardal Test
B.C. courts have developed a rich body of case law applying Bardal principles. A few key examples include:
- Bachynski v. DC Diagnosticare Inc., 2001 BCSC 36: The court awarded 18 months’ notice to a 52-year-old manager with 19 years of service, citing his age and limited transferable skills.
- Shinn v. TBC Teletheatre B.C., 2001 BCCA 83: The Court of Appeal confirmed that industry context matters. Even with shorter service, notice may be extended in niche industries with few comparable roles.
- Byers v. Prince George (City), 1998 BCCA 6422: The Court of Appeal cautioned against assuming clerical employees always receive shorter notice than managers, emphasizing that Bardal is a flexible test.
- Staley v. Squirrel Systems of Canada Ltd., 2012 BCSC 954: A mid-level employee with 14 years’ service received 12 months’ notice. The court considered the employee’s mitigation efforts in determining the final award.
These cases demonstrate that reasonable notice in BC is highly individualized and often significantly exceeds ESA minimums.
As Christopher Achkar, employment lawyer and founder of Achkar Law, explains:
“The Bardal test ensures that reasonable notice in BC is based on fairness, not a rigid formula. Employers who underestimate these factors risk wrongful dismissal claims that could be very costly.”
The Role of Mitigation in BC
Even if the Bardal factors support a lengthy notice period, employees must take reasonable steps to mitigate their losses by searching for comparable employment.
If a court finds the employee did not make genuine efforts, for example, by failing to apply for jobs or rejecting reasonable offers, the notice period (and resulting damages) can be reduced.
In Staley, the court explicitly considered the employee’s job search evidence in assessing damages.
For employers, mitigation can be an effective defence. Documenting job postings, offers of re-employment, or outplacement support can help demonstrate that the employee failed to mitigate their losses.
Why This Matters for BC Employers
Wrongful dismissal claims are among the most common employment disputes in British Columbia. Employers who rely solely on ESA minimums often face significant liability because common law notice is usually far longer.
For example:
- An employee with 15 years of service might receive only 8 weeks’ notice under the ESA.
- Under common law, however, the same employee could be entitled to 12 to 18 months, a substantial financial difference.
Understanding the Bardal test helps employers:
- Assess legal risk before issuing termination letters
- Negotiate fair severance packages aligned with court expectations
- Avoid costly litigation by making reasonable offers up front
What BC Employers Should Do Now
To reduce exposure in termination disputes, employers should:
- Use Clear, Enforceable Contracts
Termination clauses must comply with the ESA and be carefully drafted to withstand legal scrutiny. Poorly written clauses are often struck down, leaving employers exposed to common law notice. - Evaluate the Bardal Factors Before Termination
Consider the employee’s age, length of service, position, and the job market before deciding on an appropriate notice period. - Support Mitigation Efforts
Provide references, offer job search support, or consider re-employment opportunities. Keep records of any offers made. - Seek Legal Advice Early
A severance lawyer can help calculate reasonable notice, assess risks, and negotiate settlements that prevent litigation.
- They include the character of employment, length of service, age of the employee, and availability of similar employment.
- No. ESA minimums are statutory floors, but courts often award far higher amounts under common law unless a valid contract limits notice.
- Damages can be reduced if the employee fails to reasonably mitigate their losses.
- Often yes. Age, seniority, and limited re-employment prospects usually increase notice periods.
- By using enforceable contracts, offering fair severance, supporting mitigation, and seeking legal advice before termination.
How Achkar Law Can Help
At Achkar Law, we support both employers and employees in navigating termination disputes. Our team provides:
- Termination and severance package reviews
- Legal risk assessments based on Bardal factors
- Representation in wrongful dismissal claims
- Drafting enforceable employment agreements
Final Thoughts
The Bardal factors remain the foundation of reasonable notice law in British Columbia. Courts focus on fairness, flexibility, and the individual circumstances of each employee.
For employers, understanding how these principles are applied is crucial to avoiding costly litigation.
For employees they are key to understanding your full severance entitlements.
Contact Achkar Law
If you are dealing with a termination or wrongful dismissal situation in B.C., Achkar Law can guide you through the process.
Contact us today to speak with an experienced employment lawyer about reasonable notice, severance, and your legal options.
Call toll-free: 1-800-771-7882 | Email: [email protected]
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. ©