Common Law Notice — Ontario Employment Law
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About Common Law Notice
In Ontario, when an employer terminates an employee without legally valid cause, they cannot simply walk away. By default, judge-made law requires the employer to provide the worker with advance warning of their dismissal or pay in lieu of that warning. This overarching legal presumption is known as common law notice.
Many workers confuse this right with the statutory minimums set by the Employment Standards Act, 2000 (ESA). Under the ESA, termination pay is based on a strict formula (capping at 8 weeks for 8 or more completed years of service), and eligible employees might also receive statutory severance pay (up to a maximum of 26 weeks based on prorated years of service). However, common law notice is an entirely separate and typically far more generous entitlement. Instead of applying a rigid mathematical formula, Ontario courts weigh a set of individual factors, often referred to as the Bardal factors. These include the employee's age, their length of continuous service, the character of their employment (such as the level of responsibility or specialization required), and the availability of similar employment in the current job market.
Because courts holistically assess these factors, there is no quick "per-year" multiplier or rule of thumb for common law notice, and awards can vary widely. A short-term employee in a highly specialized role could receive several months of notice, while a senior worker with decades of tenure might be entitled to up to 24 months, which courts generally treat as the upper limit in non-exceptional cases.
Employers frequently try to avoid paying common law notice by having employees sign employment agreements containing termination clauses. These clauses aim to restrict the employee's payout exclusively to the ESA minimums. However, Ontario courts heavily scrutinize these contracts. If any part of a termination provision violates the ESA, the entire clause can be deemed void, thereby restoring the employee's full right to common law notice.
Since judicial interpretation of employment contracts frequently shifts and the assessment of notice factors is entirely unique to the individual, relying on tailored guidance from a legal professional is highly recommended to accurately evaluate any severance offer.
Frequently Asked Questions
What is the difference between common law notice and ESA minimums?
The ESA provides strict, non-negotiable statutory minimum formulas for termination and severance pay. Common law notice is a separate, judge-made legal presumption based on factors like age and job market, which typically results in a much larger financial entitlement than the ESA minimums alone.
Is common law notice calculated using a month-per-year rule?
No. Ontario courts have explicitly rejected strict mathematical formulas, such as "one month per year of service." Instead, judges determine the notice period by weighing a variety of factors together, so two people with the exact same length of service could receive very different notice periods.
Can my employer use an employment contract to cancel my common law notice?
Employers can try to displace common law notice rights using carefully drafted termination clauses in an employment contract. However, if the wording of the clause falls short of or violates any minimum standards under the ESA, the clause becomes legally void, and your common law rights are restored.
Do I get both common law notice and statutory severance pay?
You do not get to "double dip." If you are awarded or negotiate a common law notice settlement, any statutory termination or severance pay guaranteed under the ESA is typically included within that overall common law amount.
How long do I have to sue my employer for common law notice?
Under the Limitations Act, you generally have exactly two years from the date of your termination to file a lawsuit claiming wrongful dismissal and seeking common law notice. Once this deadline passes, you lose the right to sue.
When is it worth hiring a lawyer to look at my severance package?
You should consult an employment lawyer immediately upon receiving a termination letter, especially before signing any full and final release. A lawyer can determine if your employment contract's termination clause is actually enforceable or if you have a strong claim for full common law notice.
Common Scenarios
- A 56-year-old middle manager is terminated after 18 years at a logistics company. While the ESA entitlements provide only a fraction of their salary, their older age, long tenure, and a difficult hiring market lead to a common law notice entitlement approaching 16 to 18 months, ensuring a financial bridge to a new career.
- A specialized software engineer is let go without cause after only 10 months of employment. Despite having less than a year of service, the niche nature of their skills and the scarcity of similar tech roles result in a common law notice award of 4 months, far exceeding the 1 week required under the ESA.
- A worker signs an employment contract limiting their dismissal payouts to ESA minimums. Three years later, they are terminated. A legal review reveals the contract's "termination for cause" language improperly bypassed statutory rules, causing the entire clause to crumble and entitling the worker to full common law notice instead.
What You Should Know
- Never assume you are only entitled to what the ESA guarantees; unless you have a perfectly drafted employment contract restricting you, common law notice is the default standard in Ontario.
- Keep a detailed, written log of your job search efforts after being fired. Under the common law, you have a strict duty to mitigate your financial losses by actively looking for comparable work.
- Do not trust "rules of thumb" you find online to calculate your termination package. Because courts look at the whole picture without using a formula, rely on historical case law and professional advice to gauge a fair notice period.
- Have an Ontario employment lawyer review the specific wording of your employment contract before you accept an initial severance offer, as thousands of older termination clauses are no longer legally valid.
Featured Cases
K. v. Crossbridge Condominium Services Ltd.
2025 ONSC 3905 (CanLII) · 2025-06-30Wrongful Dismissal: 10 Months Notice for Condominium Manager
This wrongful dismissal case concerns a Licensed Condominium Manager with over three years of service who was terminated following a change in service providers. The court determined that the incoming provider was deemed the employer under the Employment Standards Act, 2000, and was liable for common law notice. Applying the Bardal factors, the court awarded 10 months' notice, rejecting the defendants' mitigation defense because the plaintiff made extensive efforts by applying for 170 positions with no evidence of unreasonable conduct.
Bertsch v. Datastealth Inc.
2024 ONSC 5593 (CanLII) · 2024-10-08Enforceability of ESA-Compliant Termination Clauses
This is a Rule 21 motion decision determining the enforceability of termination provisions in an employment agreement. The court addressed whether the clauses were void for failing to properly reference statutory exemptions and whether they effectively excluded common law notice. The court found the provisions clear, unambiguous, and compliant with the ESA, applying principles from Machtinger, Sattva, and Waksdale.
Nemeth v. Hatch Ltd.
2018 ONCA 7 (CanLII) · 2018-01-08Clause Upheld, but Read to Give 19 Weeks' Notice
This appeal concerns a termination clause for an employee with 19 years of service who received 8 weeks' notice and ESA severance pay. The Court of Appeal held that the clause displaced common law reasonable notice, since its intention was clear, and that its silence on severance pay did not void it. Reading the clause in the employee's favour, it held he was entitled to one week per year of service, 19 weeks, and allowed the appeal in part.
K. v. National Money Mart Company
2017 ONCA 356 (CanLII) · 2017-05-05K. v. National Money Mart: Termination Clause & Bonus
This is an appeal from a trial decision concerning the enforceability of a termination clause in an employment contract. The central issues were whether the clause precluded common law reasonable notice and whether the employee was entitled to bonus payments accrued during the statutory notice period. The Court of Appeal upheld the trial judge's finding that the clause was unambiguous, enforceable, and did not violate the Employment Standards Act, 2000.
Wood v Fred Deeley Imports Ltd.
2016 ONSC 1412 (CanLII) · 2016-04-19Wood v Fred Deeley: Termination Clause Enforceable
The employee sued for common law reasonable notice after being terminated from a clerical role at age 49 with eight years of service. The court granted summary judgment to the employer, finding its termination clause enforceable because it exceeded statutory minimums and there was no evidence of non-compliance. The judge dismissed the claim but assessed reasonable notice at 9 months (39 weeks) only in the alternative, in case the clause was later found void on appeal.
H. v. Shoeless Joe’s
2011 ONSC 3242 (CanLII) · 2011-05-26Wrongful Dismissal: VP Awarded 2.5 Months Notice
This wrongful dismissal case concerned a Vice-President of Operations who was employed for 5.5 months without a written contract limiting notice. The court applied the Bardal factors to determine that 2.5 months of common law notice was reasonable. Additionally, the defendant's argument regarding mitigation of damages was rejected because the plaintiff's refusal of alternative consulting work occurred outside the notice period.
A. v. M. Loeb, Ltd.
1984 CanLII 2067 (ON SC) · 1984-03-21Wrongful Dismissal: Employee Entitled to 6 Months Notice After Business Sale
A wrongful dismissal case where an employee was dismissed without cause after 18 months of service with the current employer, following the sale of the business as a going concern. The court determined that the employee was only entitled to notice based on service with the current employer, not total service since 1963. Damages were awarded based on six months’ notice, with mitigation of damages considered.