Increasing Common Law Notice Awards In Recent Years

In Canada, common law courts have established for nearly a century that absent any contractual language to the contrary, an employer must provide "common law" reasonable notice (or pay in lieu of notice) in a termination without cause. The long-stated purpose of common law notice is to provide employees with economic security while they seek alternate employment (i.e. to "bridge the gap" between employment). Reasonable notice is the quid pro quo for the employer's right to terminate indefinite employment at any time for any reason (subject of course to rights and obligations conferred by specific statutes e.g. occupational health and safety or human rights legislation). The oft cited and oft ignored notice period guidepost is one month of notice per year of service with a ceiling of 24 months. However, each case turns on its particular facts, and courts have used Ontario's Bardal factors as a means to forecast on a case-by-case basis, how long each employee reasonably