Published on: July 2, 2025
Why “Reasonable Notice” Isn’t So Simple
You just got let go. The termination letter says you’re getting two weeks’ pay—and you’re wondering if that’s really fair. It might be. But chances are, it’s not.
In Ontario, the concept of “reasonable notice” goes way beyond what most employees expect. There’s what the Employment Standards Act (ESA) requires—and then there’s what the courts say is actually reasonable under common law. Spoiler: The courts are often much more generous.
So before you accept what’s being offered, it’s important to understand how judges in Ontario actually calculate notice periods—and what that could mean for your compensation.
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ESA vs. Common Law: What’s the Difference?
The Employment Standards Act (ESA) is the legal minimum. For most employees in Ontario, that means:
• 1 week of notice per year of service of notice of pay in lieu of notice,
• Capped at 8 weeks maximum, and
• Possibly severance pay if you’ve been with the company for 5+ years and the company’s global payroll is $2.5M+.
Common law typically offers far more severance than the ESA. And if your employment contract doesn’t clearly limit you, you can likely claim common law notice.
Under common law, reasonable notice isn’t just a math formula—it’s a judgment based on your unique circumstances. Which brings us to the key question: how do courts decide what’s “reasonable”?
The 4 Key Factors Ontario Courts Consider
Ontario courts don’t use a one-size-fits-all formula. Instead, they rely on a well-established test called the Bardal Factors, taken from a landmark historic case. Here’s what they look at:
- Length of Service
Generally, the longer you’ve worked, the more notice you’re owed. A decade-long tenure won’t be treated the same as someone who worked just one year. - Age
Older employees may receive more notice. Why? Because it can be harder to re-enter the workforce or transition to a new industry. - Position & Responsibilities
Courts consider whether your role was senior, specialized, or managerial. Higher-level or niche positions often require longer notice due to fewer comparable jobs. - Availability of Similar Employment
If the job market is tight or your skills are highly specific, you may be entitled to more notice. Courts assess how easily someone in your shoes can find comparable work.
Courts don’t score or weigh these factors like a quiz—they assess them based on the context. Two people with similar service lengths can end up with very different notice periods depending on their role, industry, and market conditions.
Real-World Examples from Ontario Cases
Understanding how courts apply the Bardal factors is easier with real examples. Here are a few Ontario wrongful dismissal cases that show how reasonable notice is calculated in practice:
Case 1: Mid-Level Employee, 5 Years of Service
The company let go of a 42-year-old administrative manager after five years. Despite not holding an executive title, the court awarded 6 months’ notice. Reason: moderate tenure, mid-level role, and a relatively narrow job market.
Case 2: Long-Serving Senior Executive
The company terminated a 58-year-old VP without cause after 18 years of service. The court ruled in favor of 22 months’ notice, citing seniority, age, and challenges in finding a comparable role near retirement.
These examples show that the court’s approach is flexible—not mechanical. Judges assess each case based on its unique facts and context.
ESA vs. Common Law – Why It Matters for Your Notice Period
If your employer terminates you without cause in Ontario, they must give you reasonable notice—but what does that really involve?
There are two legal frameworks that determine this:
Employment Standards Act (ESA) – The Bare Minimum
The ESA outlines minimum notice requirements based on your length of service. For example:
• Less than 1 year: 1 week
• 1–3 years: 2–3 weeks
• 5+ years: Up to 8 weeks
• This is your baseline. Employers must meet this at a minimum.
But here’s the twist—ESA notice is not the final word.
Common Law – The True Standard
Under common law (court rulings and precedents), notice periods are often significantly longer than ESA minimums. Courts consider Bardal factors (as discussed earlier) to determine what’s reasonable for your unique situation.
For example, someone entitled to 8 weeks under ESA might get 8 months or more under common law.
Why This Difference Matters
Many severance packages only offer ESA minimums—especially if the employer assumes the employee won’t challenge it.
If you accept the ESA minimum without legal advice, you could be walking away from months of additional compensation.
What Could Reduce (or Increase) Your Notice Period?
Not every case is cut and dry. Ontario courts consider multiple factors that can either shrink or stretch your notice entitlement.
Factors That Might Reduce Notice:
• Valid termination clause in your contract: If your employment agreement clearly limits notice to ESA minimums (and it’s legally enforceable), the court may uphold it.
• Short job tenure: Employees with less than a year of service often receive shorter notice periods.
• High job availability: If your role is in high demand and you’re expected to find a similar job quickly, notice may be shorter.
Factors That Could Increase Notice:
• Lengthy service: Long-term employees are typically awarded more notice.
• Specialized role: If your job requires unique skills or experience, it might take longer to find a comparable position.
• Older age: Employees closer to retirement often face longer job hunts and are awarded extended notice.
• Bad faith by the employer: Courts may extend notice if the termination was handled in a harsh or insensitive way.
Every case turns on its own facts. This is why personalised legal advice is so important—what applies to one employee may not apply to another.
Wrongful dismissal cases are rarely black and white. Employers may present offers that appear fair on the surface but fall short under common law. And if you’re relying solely on ESA entitlements, you may be walking away from weeks or even months of compensation.
At Taman Singh Law, we specialize in employment law and help employees secure the severance they deserve. We’ve helped hundreds of Ontarians challenge unfair terminations and recover the compensation they deserve.
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About The Author
Taman Singh is an employment lawyer with a focused practice in wrongful dismissals and severance negotiations. He is dedicated to advocating for employees and ensuring they receive the compensation they are rightfully owed. With a sharp understanding of Ontario employment law and a results-driven approach, Taman consistently helps clients navigate complex workplace disputes and maximize their severance packages.
