Under Canadian common law, employees hired for an indefinite term are entitled to reasonable notice of termination or pay in lieu of notice when they are dismissed without cause. This obligation applies unless an employment contract clearly and lawfully limits or displaces common law notice.
For employees, this is significant because common law reasonable notice often exceeds the minimum notice and severance entitlements under employment standards legislation. For employers, it represents a major source of termination liability.
The question most often asked is simple but critical: how long is common law reasonable notice? As courts frequently emphasize, the answer depends on the individual circumstances of the employee and the realities of the job market.
What is common law reasonable notice?
Common law reasonable notice is the period of advance notice, or compensation in lieu of notice, that an employer must provide when terminating an employee without cause.
Unless a contract validly restricts this entitlement, courts will assess reasonable notice using judicially developed principles rather than statutory minimums.
Factors courts use to determine reasonable notice
Courts will engage in a balancing exercise where they will weigh what are often referred to as the Bardal factors, originating from the seminal employment law case, Bardal v. Globe & Mail Ltd., 1960 ONSC 294. These factors are assessed together, not in isolation. The core Bardal factors are:
- Age of the Employee:
It is recognized that older workers often face greater challenges re-employing, which could justify longer notice periods.
- Length of Service:
Longer service generally supports a longer notice period, reflecting the employee’s reliance on the employment relationship and the disruption caused by its termination.
- Character of Employment:
Senior, managerial, executives, and highly specialized roles typically warrant a longer notice period, as senior roles are less available.
- Availability of similar employment:
This factor considers the employee’s experience, qualifications, and the job market itself when assessing re-employment prospects.
Applied together, these factors help the courts reflect on the individual employee’s circumstances and the broader reality of the job market to help determine a notice period that fairly reflects the employee’s realistic prospects of re-employment.
Is there a maximum common law notice period?
Based on past jurisprudence, Ontario courts have generally treated 24 months as the upper range for common law reasonable notice. Only rare and exceptional circumstances have traditionally justified notice periods beyond this two year “limit”.
However, more recent case law may be signaling a shift away from this rigidity, emphasizing individualized assessment over artificial limits.
When will courts award more than 24 months’ notice?
In decisions where employees have been awarded notice periods exceeding 24 months, courts have noted exceptional circumstances including:
- Reprehensible or egregious behaviour by the employer of a long-service employee.[1]
- An extraordinary length of service, approaching or exceeding several decades
- Occupying an extremely important senior or critical position.[2]
A recent decision awarded an older employee who worked for the company for 40 years with a notice period just over 24 months.[3]
Growing judicial flexibility in assessing reasonable notice
Courts seem to be moving away from the strict approach of capping notice periods at 24 months. Instead, they are focusing on whether the notice period realistically reflects an employee’s ability to secure comparable employment.
For employers, this trend should underscore the importance of drafting clear, enforceable termination provisions that limit exposure to potentially significant common law notice awards.
For employees, it may be reassuring to know that Courts are willing to look closely at how a termination affects an individual employee’s realistic prospects of re-employment.
Key takeaways for common law notice periods
- Employees terminated without cause are entitled to reasonable notice unless a contract lawfully limits it
- Common law notice usually exceeds ESA minimums
- Courts assess common law notice using the Bardal factors
- While 24 months has been treated as an upper range, courts are showing greater flexibility
- Exceptional cases may justify notice beyond two years
Frequently Asked Questions About Common Law Notice
What is common law reasonable notice?
- It is the period of notice or pay in lieu that courts require employers to provide when terminating an employee without cause, unless a valid contract limits this right.
How long is common law notice in Canada?
- There is no fixed formula. Courts assess reasonable notice based on age, length of service, role, and availability of similar employment.
Is common law notice capped at 24 months?
- Traditionally, 24 months has been treated as an upper range, but courts are increasingly willing to exceed it in exceptional cases.
Can an employment contract limit common law notice?
- Yes, but only if the termination clause is clear, unambiguous, and compliant with employment standards legislation.
Should I have my employment contract reviewed?
- Yes. Given the financial consequences of termination, both employers and employees should have contracts reviewed by an experienced employment lawyer.
Why contact Whitten & Lublin employment lawyers?
Given the financial consequences at stake, both employers and employees are well advised to have their employment contracts reviewed by an experienced employment lawyer. Contact Whitten & Lublin online or by phone at (416) 640-2667.
[1] Scarrow v. Walkey et al, 2024 ONSC 3876.
[2] Cowper v. Atomic Energy of Canada Ltd., 1999 ONSC 14853; Panchbaya v. Vulsay Industries Ltd., 2025 ONSC 5370.
[3] Panchbaya v. Vulsay Industries Ltd., 2025 ONSC 5370.
Author – Marilou Lopes
