Employment Lawyer for Fired Employees pursuing Severance Pay

Severance Pay Determination by Bardal Factors

The determination of common law severance pay is heavily reliant on the court's application of the Bardal Factors in assessing the employee's past employment and future employment prospects.

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Neufeld Legal P.C. can be reached by telephone at 403-400-4092 / 905-616-8864 or email Chris@NeufeldLegal.com

The Bardal Factors are a series of legal considerations that have become well established court precedent for purposes of determining the appropriate notice period, and hence severance pay, for fired and terminated employees in Canada. It is named after the 1960 Ontario High Court case that set out these legal factors, being Bardal v. The Globe & Mail Ltd., which has consistently been applied by the Supreme Court of Canada (in Machtinger v. HOJ Industries Ltd.; Wallace v United Grain Growers Ltd.; Honda Canada Inc. v Keays), as well as other court decisions, presently being in excess of 1,500 court decisions.

Chief Justice McRuer set out what have now become known as the Bardal factors in his decision in Bardal v. The Globe & Mail Ltd. as follows: “There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.”

We should also heed the words of the Supreme Court of Canada in the application of the Bardal factors, where the Supreme Court stated in Honda that “No one Bardal factor should be given disproportionate weight” and in Wallace that “the Bardal factors have not been viewed as exhaustive. Courts have introduced additional factors into the assessment process, often without articulating the policy reasons for doing so. This has led to confusion about what kinds of factors may be considered in the future. As a result, this area of the law ‘is often uncertain and unpredictable.’”

It is also worthwhile to remember, before expounding upon the Bardal factors, that we first look to the Supreme Court’s further guidance in Honda, where the Supreme Court referenced a general rule dating from the 1909 English House of Lords’ decision in Addis v Gramophone Co. that “damages allocated in such actions are confined to the loss suffered as a result of the employer’s failure to give proper notice and that no damages are available to the employee for the actual loss of his or her job and/or pain and distress that may have been suffered as a consequence of being terminated.”

Justice Neufeld’s 2017 Alberta Court of Queen’s Bench decision in Freeman v PetroFrontier Corporation restated the more expansive detailing of the Bardal factors from Justice Graeser in Nelson v. Champion Feed Services Inc.:

  1. The nature of the employment - the more senior the position, the longer it is likely to take to find a replacement position. There are fewer senior management jobs around.

  2. The length of service - the longer an employee has worked for one employer, the more difficult it may be to find an alternate job. Either because the employee has narrowed his or her skills by working for one employer for a long time, or the employee has been paid more than the job is worth because of long service.

  3. The age of the employee - the older the employee is, the less likely he or she is to find a suitable position, or the longer it is likely to take. Older employees are sometimes perceived as less worthwhile to invest in.

  4. The availability of suitable similar employment having regard to the employee's experience, training and qualifications together with surrounding economic circumstances - what is the realistic prospect of this employee getting a similar replacement job? What is the job market like? In good economic times, jobs may be plentiful and the employee may have little difficulty finding a good replacement job; in poorer times, there may be few jobs around.

Justice Neufeld went on to provide some important points of consideration in the application of the Bardal factors, contending that: “While the factors to be considered in determining reasonable notice are reasonably straightforward, the case law displays a significant degree of variability in the results reached. Some of that variability is a function of the factual differences in cases before the Courts. However, it is also reasonable to expect that the application of those facts is also influenced by different perceptions of the basic fairness (or unfairness) of the positions advanced at trial.” 

If you have lost your job, it is imperative that you scrutinize your severance pay (or why your former boss is contending you are not due severance pay). For a free initial consultation, contact our law firm at Chris@NeufeldLegal.com or 403-400-4092 / 905-616-8864.


What are the Bardal Factors?

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