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 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, and the result is frequently far higher than the ESA minimum, with 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.
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, and 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
Character of employment
The nature, seniority, and responsibilities of your role. Senior, specialized, or managerial positions typically attract longer notice, because comparable roles are harder to find and the skills are more specific to a particular context.
Length of service
The total duration of your employment with the same employer. Longer service generally means longer notice, reflecting the investment a long-serving employee has made and the greater disruption of a sudden dismissal.
Age at dismissal
Older employees typically receive longer notice because they face greater difficulty transitioning to comparable work. The older you are at dismissal, the more courts recognize the challenge of finding equivalent work quickly.
Availability of similar work
The state of the job market, industry conditions, and the realistic availability of comparable positions given your experience and qualifications. Where the market for your skills is limited or contracting, courts may award longer notice.
The Bardal factors are weighed together, not applied as a checklist or formula. Two employees at the same company with the same job title can receive very different outcomes based on their individual circumstances. That is exactly why online severance calculators produce estimates only, and should never be the sole basis for accepting or rejecting an offer.
Additional factors courts consider beyond Bardal
While the four factors form the foundation, Ontario courts regularly consider other circumstances that can increase or decrease the notice period, including:
- Whether you were induced or recruited away from secure employment to join the employer, which can support longer notice where significant inducement occurred.
- Whether you were dismissed while on medical or parental leave, or while dealing with a health condition, which can affect the calculation and may raise separate human rights issues.
- Whether the employer acted in bad faith in the manner of the dismissal, which can lead to additional damages beyond the standard notice award.
- Whether you are subject to non-compete or non-solicitation restrictions that limit your ability to find comparable work.
- Whether your industry is declining or undergoing structural change that limits comparable positions.
- Whether the employer provided outplacement or job search assistance, which courts may weigh in assessing the appropriate notice period.
How the factors work in practice
The clearest way to see the factors at work is to compare two employees with identical tenure but different profiles.
Same employer, same length of service, and the same eight-week statutory minimum, yet the common law ranges are worlds apart. Age, seniority, and the market for the role do most of the work. That is the gap a bare ESA offer ignores.
See where your circumstances land
Our free calculator applies the Bardal factors to estimate your likely common law range against the ESA minimum. Use it as a starting point, then have your specific offer reviewed.
Estimate Your Severance Or call us: 1-800-771-7882Signs your severance offer may not reflect the Bardal factors
Your offer may be short if any of these apply
- You received only the ESA minimum of one week per year up to eight weeks, and have more than a few years of service.
- You are over 40 and held a senior, specialized, or managerial role where comparable positions are limited.
- You were recruited away from another job or given significant inducements to join the employer.
- Your employer asked you to sign the release quickly, often within a few days of termination.
- Your contract contains a termination clause limiting you to the ESA minimum, which may itself be unenforceable under current Ontario law.
- You were told the offer is non-negotiable or that this is the best that can be done.
Why online severance calculators are not enough
Online calculators apply the four factors in a simplified way to produce an estimate. They do not account for the additional circumstances courts consider, the enforceability of the termination clause in your specific contract, whether inducement occurred, bad faith conduct, or industry-specific market conditions. They also cannot assess whether the total package, including how bonuses, commissions, and benefits are treated, 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 the availability of similar employment. Courts weigh them 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 depending on your situation. The only way to know your entitlement is to have your circumstances assessed by a lawyer.
Is there a maximum notice period under the Bardal factors?
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 determine the range.
Can my employer limit my severance to the ESA minimum?
Only where your contract contains a valid, enforceable termination clause that clearly limits you to the ESA minimum. Many such clauses are unenforceable under current Ontario case law. If your contract has a termination clause, have it reviewed before accepting any offer based on it. An unenforceable clause means your entitlement defaults to common law reasonable notice.
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. Ontario and BC courts apply the same four factors and the same contextual analysis, and cases from either province are regularly cited 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 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, but there is almost always time to have a package reviewed. Get legal advice before signing anything.
How Achkar Law helps employees
Achkar Law advises employees across Ontario who have been dismissed without cause. We apply the Bardal factors to your specific circumstances, assess whether the termination clause your employer is relying on is enforceable, and negotiate to recover the notice you are actually owed. For more on how this fits together, see our guides to common law severance, severance pay, and wrongful dismissal in Ontario.
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. Start with our severance pay calculator, then 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 information in this article is general and is not legal advice. An employment lawyer can advise on your specific situation.
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. ©