Is an employee entitled to a month's notice for each year of service?

No, said the Ontario Court of Appeal in the Minott case earlier this year. This case rejected the trial judge's approach which followed a rule of thumb applied by employment law specialists which provided that an employer should allow one month of notice for every one year of service with upward or downward adjustments for extraordinary circumstances. According to the Court of Appeal, the rule of thumb approach has two problems: it risks overestimating length of service at the expense of other factors; and it risks undermining the flexibility of the test set out in the 1960 Bardal decision. The Bardal test takes into account (1) the character of employment, (2) the length of service, (3) the employee's age, and (4) the availability of similar employment having regard to the experience, training and qualification of the servant.

Accordingly, the suggested approach to determining a reasonable notice of termination is to look at what has been found to be reasonable in other similar cases applying the Bardal factors and any other relevant factors. This approach will often result in a range of reasonable notice. This range is then adjusted up or down to reflect any differences among the terminated employees under consideration.

Is there a cap of 12 months notice of termination for all non-managerial employees?

Again the answer is no according to the Ontario Court of Appeal's decision in Minott. The Court clarified its earlier Cronk decision. In particular, the Court stated that at most the Cronk decision
provides that the 12-month cap on damages for wrongful decision applies only to clerical employees. As far as expanding the 12 month cap, the Court stated that: "The imposition of an arbitrary 12-month ceiling for all non-managerial employees detracts from the flexibility of the Bardal test and restricts the ability of the courts to take account of all factors relevant to each case and of changing social and economic conditions."

The Court of Appeal has rejected a formulistic approach to determining damages in wrongful dismissal cases. The Court also strongly endorsed the Bardal approach to deciding on the appropriate reasonable notice period.

To minimize the chance of a dispute with an employee as to what is the appropriate reasonable notice period, the employer and employee can agree at the beginning of the employment relationship on a reasonable notice period by including a termination clause in an employment contract. Generally, as long as this notice period meets minimum standard legislation, the courts will enforce this agreed upon notice period.