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Common Law Notice Period in Ontario: How Long Is Reasonable Notice?
How Long Is Common Law Notice in Ontario?
In Ontario, common law notice (also called reasonable notice) can range from a few months to 24 months or more, depending on the employee’s age, length of service, position, and job market conditions.
Unlike ESA minimum notice (which is capped at 8 weeks), common law notice is often significantly longer.
There is no fixed formula, courts assess each case individually.
What Is Common Law Notice?
Common law notice refers to the notice period an employer must provide when terminating an employee without cause, unless a valid employment contract limits notice to ESA minimums.
If a termination clause is invalid, the employee may be entitled to full common law reasonable notice.
Common Law Notice vs ESA Notice in Ontario
| ESA Notice | Common Law Notice |
|---|---|
| 1 week per year of service | Often several months |
| Maximum 8 weeks | Often up to 24 months |
| Statutory minimum | Judge-determined |
| Can be limited by contract | Applies by default |
Meeting ESA minimums does not eliminate common law entitlement.
How Do Ontario Courts Calculate Common Law Notice?
Courts apply the Bardal factors, which include:
- Length of service
- Age of the employee
- Character of employment (seniority, specialization)
- Availability of comparable employment
There is no strict formula. Judges ask:
How long would it reasonably take this employee to find comparable work?
Typical Common Law Notice Periods in Ontario
While every case depends on its facts, general ranges include:
- 1–3 years of service: 2–6 months
- 5–10 years of service: 6–12 months
- 15+ years of service: 12–24 months
- Senior or specialized roles: potentially 24 months or more
These are not guarantees, but common benchmarks.
What Is “Reasonable Notice” in Ontario?
Reasonable notice is the period an employer must provide to allow an employee sufficient time to secure comparable employment.
If notice is not worked, the employer must provide compensation in lieu of notice.
Can an Employment Contract Limit Common Law Notice?
Yes, but only if:
- The termination clause complies fully with the ESA
- The clause is clear and enforceable
- It does not violate employment standards
If the clause is invalid, the employee defaults to full common law reasonable notice.
Invalid termination clauses are common.
What Happens If an Employer Pays Only ESA Minimum Notice?
If the employment contract is unenforceable, providing only ESA notice may expose the employer to:
- Wrongful dismissal claims
- Significant additional compensation
- Legal costs
Employees may be entitled to months of additional pay.
Is Common Law Notice the Same as Severance Pay?
Not exactly.
Common law notice refers to the full notice period required under court principles.
Severance pay is a specific ESA entitlement for certain long-service employees.
An employee may be entitled to:
- ESA termination pay
- ESA severance pay
- OR full common law notice (if contract invalid)
Frequently Asked Questions About Common Law Notice in Ontario
Common law notice often ranges from several months to 24 months or more, depending on age, service, and role.
Reasonable notice is the period courts determine is necessary for an employee to find comparable work after termination.
Ontario courts apply the Bardal factors, including length of service, age, seniority, and job market conditions.
Yes. ESA notice is capped at 8 weeks, while common law notice can extend to months or even two years.
Yes, but only if the termination clause is valid and complies with the ESA.
If invalid, the employee is entitled to full common law reasonable notice.
There is no fixed formula, but courts often award approximately one month per year of service in many cases, subject to the Bardal factors
While there is no statutory cap, courts typically limit reasonable notice to around 24 months in most cases.
As Christopher Achkar, employment lawyer and founder of Achkar Law, explains:
“Many employees are entitled to far more notice or compensation than what’s offered, and employers risk liability if they get it wrong. At Achkar Law, we help both sides understand their rights and obligations before taking the next step.”
Unsure What Your Common Law Notice Period Should Be?
Common law notice can significantly exceed ESA minimums.
If you:
- Received only 8 weeks of notice
- Are unsure whether your contract limits your rights
- Believe your termination clause may be invalid
- Or are an employer assessing termination risk
- Understanding your common law exposure is critical.
Achkar Law advises employees and employers across Ontario on reasonable notice, termination clauses, and wrongful dismissal claims.
Call 1-800-771-7882 or request a confidential consultation today.
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. ©