There is a common misconception about wrongful dismissal in Ontario. Some individuals believe they need to prove their dismissal was unfair or arbitrary to establish wrongful dismissal. This, however, is far from the truth.

To prove wrongful dismissal, you simply need to demonstrate that you were not provided with “reasonable” notice of your termination.

Employers’ Right to Terminate in Ontario

In Ontario, employers have the legal right to terminate employees for any reason, as long as the reason is not discriminatory. This rule allows employers to make decisions about their workforce without needing to justify their reasons for dismissal. As a result, employers can be arbitrary or even unfair in their decision to terminate employees.

However, one crucial rule governs dismissals: employers must provide “reasonable notice” of termination or pay in lieu of notice. This means an employer must either give an employee adequate advance warning of their dismissal or compensate them for the notice period instead. In most cases, employers opt for payment in lieu of notice, as continuing to employ someone after giving notice may not be practical for the business.

Why Do Employers Owe Reasonable Notice?

Under Canadian common law, unless an employment contract explicitly states otherwise, an implied term of reasonable notice is automatically incorporated into employment relationships of indefinite duration.

The length of reasonable notice depends on various factors, which we will discuss below. Therefore, in a traditional wrongful dismissal case, the central question is whether the employer provided sufficient notice.

It’s important to note that employees can sue for wrongful dismissal and seek additional damages for reasons unrelated to reasonable notice. However, proving wrongful dismissal itself hinges on the adequacy of notice.

Calculating Reasonable Notice

To determine whether an employee received reasonable notice, courts consider what is reasonable in the specific circumstances. The key factors, known as the Bardal factors, include:

• The employee’s age
• The nature of their position
• Their length of service
• The availability of comparable employment, considering the employee’s experience, training, and qualifications

Each case is unique, and reasonable notice must be assessed based on the specifics of the dismissal.

Courts also rely on common law precedents to guide reasonable notice periods. For example, if previous cases have awarded 14-20 months of notice for employees around 50 years old, in management roles, with 10 years of service, earning $250,000 annually, then a similarly situated employee might expect a comparable notice period. You can calculate your severance here.

Proving Wrongful Dismissal

To prove wrongful dismissal, an employee must show that the notice period offered was inadequate based on the Bardal factors and relevant case law. If successful, the court will award compensation for the difference between the notice given and what was reasonable, along with legal costs.

Employment Contracts and Notice Periods

Employers can use contracts to define the notice period owed upon dismissal, rather than relying on common law reasonable notice. However, not all contracts are enforceable. As we’ve discussed in other blog posts, certain contract terms may not hold up in court, which is why it’s crucial for both employers and employees to review employment agreements carefully.

In conclusion, wrongful dismissal cases are about ensuring that employees receive the notice they are entitled to under the law. If you believe you have been wrongfully dismissed, consulting with an experienced employment lawyer can help you determine your rights and next steps.