When an employee in Alberta is terminated without cause and without an enforceable termination clause, they are entitled to common law reasonable notice (often paid as severance in lieu of working notice). Unlike the minimum standards in Alberta’s Employment Standards Code (e.g. a maximum of 8 weeks’ notice after 10+ years of service), common law notice entitlements are usually much higher. Courts determine the appropriate severance (notice period) on a case-by-case basis using the Bardal factors, a set of considerations originating from the seminal case Bardal v The Globe & Mail Ltd. There is no fixed formula – the goal is to decide on a reasonable notice period that reflects the circumstances of the particular employee and termination.
The Bardal Factors And Their Role In Severance
In Bardal, the Court stated: “There can be no catalogue laid down as to what is reasonable notice in particular cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.” These four criteria – commonly known as the Bardal factors – have been consistently applied by Canadian courts (including the Supreme Court of Canada) in determining wrongful dismissal damages. In essence, the main factors are:
- Age of the employee – Older employees may require more time to find new employment.
- Length of service – Long-term employees are often entitled to a longer notice period.
- Character of employment (Position) – Senior or specialized roles can warrant more notice.
- Availability of similar employment – The job market conditions and the employee’s skills affect how long replacement work might take.
Notably, these factors are not exhaustive. Courts can consider other relevant circumstances as well. For example, the manner of dismissal or whether the employee was lured from secure employment (inducement) can influence notice, though such issues are often addressed separately (e.g. bad-faith conduct may attract additional damages rather than extending the notice period). The Supreme Court of Canada has cautioned that “no one Bardal factor should be given disproportionate weight” – all factors must be balanced to arrive at reasonable severance pay.
Below is a detailed look at each of the core Bardal factors and how Alberta courts interpret them:
Age Of The Employee
Age is a crucial factor in Alberta severance decisions. Generally, older employees are given a longer notice period because they tend to face greater challenges securing new employment. Employers who terminate someone close to retirement age effectively put them in a difficult position in the job market. As one Alberta court noted, “seniority, age, and long service with a single employer can be expected to lengthen the likely time to find replacement employment.” In other words, an older worker is likely to need more time (and thus more severance pay) to land a comparable job, especially if they have spent many years with the same employer.
For example, in Oostlander v Cervus Equipment Corp, 2022 ABQB 200, a 60-year-old heavy-duty mechanic with 36 years of service was awarded 24 months’ pay in lieu of notice. The court viewed his termination at that age and tenure as essentially a forced retirement, justifying the maximum end of reasonable notice. Similarly, courts recognize that an economic downturn or other market factors can hit older workers particularly hard – they may have to compete with much younger candidates or lack modern skills, extending their period of unemployment. By contrast, a very young employee with short service might receive a shorter notice period if they can more readily find new work, though the outcome will always depend on all the circumstances.
Length Of Service
The length of service (tenure) is another key component in calculating common law severance. Long-term employees are usually awarded more notice, reflecting loyalty and the deeper disruption caused by losing a long-held job. A lengthy tenure often means the employee’s skills and pay scale became tailored to that employer, making it harder to transition elsewhere. For instance, someone with 20+ years at one company is likely to receive a notice period toward the upper end (12 to 24 months) in recognition of their long service – especially if combined with older age or a high-ranking position.
However, length of service is not a strict “formula” for notice. It is a misconception that severance is simply one month per year of service. In reality, courts only occasionally use the “1 month per year” as a rough guideline, and often depart from it. Short-service employees are not automatically limited to minimal notice, particularly if other factors favour more. For example, a short-tenured employee in a senior role might still get a relatively substantial notice period to account for the difficulty of finding a comparable position. Alberta courts acknowledge that each case varies – one recent decision observed that reasonable notice outcomes show “a significant degree of variability” even under similar factors. The point is that tenure is important but works in tandem with the other Bardal factors.
Character Of Employment (position)
The character of employment refers to the nature of the employee’s role – including their position, responsibilities, and level of specialization. Traditionally, the courts assumed that higher-level or specialized positions warrant longer notice because such jobs are harder to replace. There are fewer comparable openings for CEOs, executives, or technical specialists, so if a person in a senior role is let go, it could take many months to find a similar position. As one Alberta decision put it, “the more senior the position, the longer it is likely to take to find a replacement position. There are fewer senior management jobs around.”
In practice, Alberta courts still consider job seniority and skill specialization when setting severance.
For example, in a 2021 case involving a communications manager (Cordeau-Chatelain v Total E&P Canada Ltd, 2021 ABQB 794), the employee’s role was “specialized and unique” – a senior-level position that was rare in the market – which led the court to award 18 months’ notice for about 8.7 years of service. Notably, the employee was 52 years old, which along with the niche role made re-employment harder. Even though 18 months is a high award for under 9 years of work, the combination of a management position and her specific expertise justified a longer notice period.
It’s worth noting that the character of employment is only one factor. Courts today are cautious not to give undue weight to job title alone. A terminated lower-level employee might also get a generous notice period if other factors (age, long service, poor job market) point that way. Conversely, a high-ranking employee who is young and in a strong job market might not necessarily get an extraordinary notice. Alberta judges weigh position alongside the full context.
Availability Of Similar Employment (economic Conditions)
The fourth Bardal factor is the availability of similar employment, considering the employee’s experience, training, and qualifications. This essentially gauges the state of the job market and how easily the person can find a comparable job. If jobs are plentiful and the employee’s skills are in demand, a shorter notice might suffice. But if jobs are scarce – due to economic downturns, a specialized field, or regional limitations – the required notice (severance) will be longer. In Bardal’s terms, what is the “realistic prospect” of the employee finding a similar job?
Alberta courts pay close attention to economic conditions at the time of termination. For example, during the oil industry slump or the COVID-19 downturn, many employers faced “poorer times, [when] there may be few jobs around.” In such cases, courts often extend the notice period because an employee is likely to be unemployed longer through no fault of their own. One Alberta judge explicitly noted that “an economic downturn is a relevant consideration” in determining reasonable notice (Lund v Quinn Maintenance Inc, 2020 ABQB 0722). The availability of alternate employment is assessed as of the time of dismissal – essentially a forward-looking prediction of the job search difficulty (evidence of industry conditions or even the employee’s post-termination job hunt can inform this assessment).
In short, if a terminated employee’s industry is contracting or their skills are not easily transferable, Alberta courts will tilt toward a higher severance award to reflect the tougher road to re-employment. Conversely, in a booming economy with lots of openings, the same employee might need less notice, though the onus would be on the employer to show that comparable jobs were readily available.
Weighing The Factors: How Courts Determine Severance
When deciding on common law severance, Alberta courts consider all the Bardal factors together, along with any other pertinent circumstances. No single factor dictates the outcome; rather, judges balance them to arrive at a fair notice period. The process is individualized – two employees with the same years of service might get different notice lengths if, say, one is older or in a weaker job market. As the Supreme Court and Alberta courts have emphasized, reasonable notice is “quintessentially” a question of fact for each case. Judges often look at precedents (previous wrongful dismissal cases with similar profiles) as guidelines, but they will adjust up or down based on the unique combination of factors in the case at hand.
There is no precise mathematical formula for calculating common law severance. While a rule of thumb like “one month per year of service” is sometimes referenced, it is not reliably applied by the courts. For instance, an employee with only a few years of service might still receive six months’ notice if other factors (age, role, market) support it, whereas another with many years might receive somewhat less than one month per year if mitigating factors make re-employment easier. The key is reasonableness in the specific context. Alberta case law confirms this flexible approach, noting that outcomes can vary and judges may exercise discretion within a reasonable range.
However, there are practical limits and typical ranges. In the vast majority of cases, common law notice in Alberta falls between a few months on the low end and about 24 months on the high end. Alberta courts have recognized a “rough upper limit” of 24 months for reasonable notice in all but exceptional cases. In fact, the Alberta Court of Appeal has explicitly affirmed that absent truly special circumstances, 24 months is the ceiling for long-service employees (Carroll v ATCO Electric Ltd, 2018 ABCA 146). Only rare, extraordinary situations justify exceeding that. For example, Ontario courts in exceptional cases have awarded 26 months to an older employee with 40 years of service when termination was deemed tantamount to forced retirement (Currie v Nylene Canada Inc, 2021 ONSC 1922). Alberta has generally hewed to the 24-month guideline.
On the other end, short-service employees usually receive more than the statutory minimum but proportionally less notice. Even a probationary or very short-term employee terminated without cause might get a few weeks or a couple of months of pay in lieu, depending on their circumstances, but they won’t approach the upper ranges since factors like long service or advanced age won’t be present.
To illustrate how Alberta courts apply the Bardal factors, consider these recent examples of severance awards under common law:
• Mid-Career, Specialized Role: In Cordeau-Chatelain v Total E&P Canada, 2021 ABQB 794, a 52-year-old communications manager with 8.7 years of service was awarded 18 months’ notice. Her relatively high severance reflected her senior management position and unique skill set (rare in the job market), combined with her age (the court noted the compounding difficulty for an older woman in that market). This exceeded the typical “month per year” because other factors weighed in her favour.
• Long Service, Average Position: In Lund v Quinn Maintenance, 2020 ABQB 722, a 17-year employee was terminated during an economic downturn with no defense from the employer. The court, applying Bardal factors, ordered 17 months’ pay in lieu of notice. The lengthy service and the challenging job market (mid-2020) influenced the court to grant roughly one month per year of service in that case.
• Very Long Service, Near Retirement: In Oostlander v Cervus Equipment, 2022 ABQB 200, mentioned earlier, a 60-year-old mechanic with 36 years of service was given the maximum 24 months’ notice. All the Bardal factors aligned at the high end: advanced age, extremely long tenure, and limited local opportunities for a job of similar kind. The court treated 24 months as appropriate and did not credit the employer’s earlier working notice because of how the termination unfolded.
These examples show how courts tailor severance pay to the individual. An older, long-service employee in a specialized role and a weak job market will land at the high end, whereas a younger, short-service worker in a strong market will be at the low end. Importantly, once a reasonable notice period is determined, the employee’s mitigation efforts come into play. The employee is expected to try to find new work during the notice period; if they succeed, any income earned can reduce the severance owed (to prevent double recovery). But the notice period itself is decided based on the situation at termination, not with hindsight of how quickly a job is found.
Conclusion
In Alberta, common law severance (pay in lieu of reasonable notice) is calculated by weighing the Bardal factors of age, length of service, position, and availability of comparable employment, among other possible considerations. Courts strive to provide the dismissed employee with enough compensation to cover the time it would reasonably take to find similar employment. Each factor can push the notice period higher or lower, but none is determinative on its own. Alberta courts generally award notice within a broad range that tops out around 24 months in the most exceptional cases.
The Bardal factors ensure that severance pay decisions are grounded in fairness and reality: the more difficulty an employee is likely to have replacing their job, the more severance pay they should receive. By examining the employee’s age, service, role, and job prospects, courts in Alberta aim to put the employee in a financial position to bridge the employment gap. The result is inherently case-specific. The application of these factors can lead to variability, influenced by the unique facts and even perceptions of fairness in each case.
In summary, determining common law severance in Alberta is about applying the Bardal factors to the employee’s circumstances to decide a reasonable notice period, typically expressed in months of pay. Employers and employees can look to past cases for guidance, but must remember that it’s an individualized assessment. By understanding the Bardal factors – and how Alberta courts balance age, tenure, position, and job market conditions – one can better predict what severance a court might deem fair in a given wrongful dismissal situation.
*Always seek legal advice. The above is for information purposes only.
Stephen Dugandzic received his Juris Doctor degree from the University of Alberta in 2013 and is Calgary-based. He previously practised with Bennett Jones LLP and Taylor Janis LLP before founding YYC Employment Law Group in 2018 and Evolution Legal in 2026.