The Assessment of Reasonable Notice by Canadian Appellate Courts from 2000 to 2011

Canadian employers have a common law obligation to give reasonable notice when terminating an employment relationship without cause. In deter- mining the appropriate length of the notice period, trial judges hearing wrongful dismissal claims must consider a range of factors, including what are known as the Bardal factors. In this paper, the author presents and analyzes the results of his empirical study of appeal court decisions reviewing trial court awards of reasonable notice across Canada from 2000 to 2011, and examines the impact of the Bardal factors (as well as several others) on outcomes at the appellate level. The study finds that appeal courts have not treated all of the Bardal factors equally, but appear to have given the most weight to the employee's age and length of tenure. Other factors found to have significant predictive value on the length of reasonable notice awards were the employee's gender and whether a successful claim for Wallace damages was made. The data also indicate that employee appeals have succeeded relatively more often than employer appeals, and that the length of notice ordered by appellate courts seems to have plateaued over time. In light of his conclusion that only a narrow range of considerations significantly affect notice awards, the author argues that the current system of judicial assessment of reasonable notice could well be replaced by a less expen- sive and time-consuming statutory scheme that would incorporate a formula for applying the relevant factors and would be administered by employment standards tribunals rather than by the courts.