If you have been terminated without cause in Ontario, your employer may have offered you a severance package that claims to follow a standard “rule of thumb”—such as one week of pay per year of service.
This is a myth. In Ontario employment law, there is no strict mathematical formula or calculator that dictates exactly how much common law severance you are owed. Instead, Ontario courts and judges calculate your maximum entitlements based on a set of legal principles known as the Bardal factors.
If your employer is ignoring the Bardal factors, they are likely lowballing you and hoping you will sign a release before you realize what your case is actually worth.
Once you sign a severance offer, you permanently give up your right to pursue the full compensation dictated by the Bardal factors. Before you accept an offer, have an Ontario employment lawyer at Samfiru Tumarkin LLP review it.
On This Page:
- 1. What Are the Bardal Factors?
- 2. ESA Minimums vs. Bardal
- 3. Maximum Cap on Severance
- 4. Why You Need an Employment Lawyer
What Are the Bardal Factors?
The “Bardal factors” originate from a landmark 1960 Canadian court decision (Bardal v. Globe & Mail Ltd.). In this case, the judge established that when an employee is wrongfully dismissed, their severance (or “reasonable notice”) must be calculated by looking at the specific, individual circumstances of their employment.
The goal of the Bardal factors is to estimate how long it will take the terminated employee to find a comparable new job.
To determine your common law severance payout, a judge will weigh four primary factors:
1. Age of the Employee
Your age at the time of termination is one of the most critical factors. Courts recognize that older employees (typically those aged 50 and above) face systemic ageism and generally have a much harder time securing new employment than a worker in their 20s or 30s. Therefore, older employees are legally entitled to significantly longer severance periods to bridge the gap to their next job or to retirement.
2. Length of Service (Tenure)
The longer you have dedicated your career to a single employer, the more severance you are owed. A loyal employee with 20 years of service will receive vastly more compensation than an employee who was let go after 18 months. (Note: Even short-service employees can receive disproportionately large payouts if the other three factors weigh heavily in their favor).
3. Character of Employment (Position and Seniority)
This factor looks at the nature of the job you held. Specialized roles, senior management positions, and C-suite executives generally take much longer to replace than entry-level roles because there are fewer comparable jobs available in the open market. The higher your seniority and specialization, the larger your severance package should be.
4. Availability of Similar Employment
Courts will look at the current economic climate and the specific job market in your industry. If you work in a highly niche industry, if the economy is in a downturn, or if your skills are no longer in high demand, your severance entitlement increases to compensate for the difficulty of finding new work.
ESA Minimums vs. The Bardal Factors
Employers frequently try to confuse employees by offering packages based strictly on the Ontario Employment Standards Act (ESA).
The ESA sets out the absolute minimums an employer must pay (Termination Pay and Statutory Severance Pay), which cap out at a combined maximum of just 34 weeks for only the most tenured employees.
The Bardal factors are used to calculate Common Law Severance. Unless you signed an employment contract with a valid, legally enforceable termination clause that explicitly limits you to the ESA minimums, you are entitled to common law severance. Under common law, the Bardal factors routinely generate payouts that are tens of thousands of dollars higher than the ESA minimums.
Is There a Maximum Cap on Common Law Severance?
Unlike the strict limits found in the ESA, there is no absolute statutory cap on common law severance calculated using the Bardal factors.
However, Ontario courts have generally established an unofficial “24-month cap.” Under normal circumstances, 24 months of full compensation is the maximum amount of severance a judge will award, usually reserved for senior, long-tenured, older employees.
Exceptional Circumstances
In recent years, Ontario courts have occasionally broken the 24-month cap, awarding up to 26 months of severance in “exceptional circumstances.” These cases typically involve employees who have spent their entire adult lives at one company, are in their 60s, and have virtually no prospect of ever finding comparable employment again.
Why You Need a Lawyer to Argue the Bardal Factors
Because the Bardal factors do not rely on a strict mathematical formula, determining your exact severance entitlement is an art, not a science. It requires a deep understanding of current Ontario case law.
When your employer calculates your severance, they will look at the Bardal factors and argue the lowest possible interpretation. They might argue that your skills are highly transferable, or that the job market is booming, in order to justify a smaller payout.
You need an employment lawyer to argue the opposite. At Samfiru Tumarkin LLP, we cross-reference your specific Bardal factors against thousands of past Ontario court decisions to prove exactly what you are owed. We systematically dismantle the employer’s arguments and demand your maximum common law entitlements.
As Canada’s largest and most positively reviewed employee-side employment law firm, we have the leverage to turn minimum ESA offers into maximum common law payouts. Over 99% of our employment cases are resolved successfully without ever going to court.
Contact Samfiru Tumarkin LLP Today
If you have lost your job, time is of the essence. Let us secure the compensation you deserve.