In Dufour v Ricky’s Family Restaurants Ltd, 2026 ABCJ 105, the Alberta Court of Justice awarded 11 months of common law reasonable notice to a 65-year-old restaurant server and cashier with approximately 9 years and 8 months of service.
The decision is a useful reminder that substantial reasonable notice awards in Alberta are not reserved for executives, managers, professionals or highly skilled employees. A relatively junior or lower-skilled employee may still be entitled to a lengthy notice period where factors such as age, length of service, employment history, transferable skills, and the availability of comparable work make re-employment more difficult.
For employees assessing severance pay in Alberta, Dufour reinforces that reasonable notice is a highly individualized analysis. Job title alone does not determine entitlement.
Background
The employee had worked at a Calgary Humpty’s restaurant from September 2014 until April 2024. She had no written employment agreement limiting her common law termination entitlements.
At the time of termination, she was 65 years old and had approximately 9 years and 8 months of service. She earned approximately $26,539 annually and had spent essentially her entire working career in the restaurant service industry, including 18 years previously working as a server at Zellers.
Her Humpty’s position was not managerial. She worked as a server and cashier and reported to the restaurant’s general manager.
The restaurant ultimately closed after its lease expired. The employee received approximately 5 weeks and 5 days of working notice, but she was not ultimately offered alternative employment elsewhere within the Humpty’s or Ricky’s network.
She pursued a wrongful dismissal claim seeking damages representing the balance of the common law reasonable notice period to which she said she was entitled.
How Is Reasonable Notice Determined in Alberta?
The Court applied the well-established Bardal factors used to determine reasonable notice in wrongful dismissal cases:
- the character of the employment;
- the employee’s length of service;
- the employee’s age; and
- the availability of similar employment, having regard to the employee’s experience, training and qualifications.
Importantly, the Court emphasized that these factors are not exhaustive.
There is no fixed formula for calculating reasonable notice in Alberta. Courts do not simply award a set number of weeks or months for each year of service. Instead, the appropriate notice period is determined on a case by case basis after considering all of the surrounding circumstances. That principle was central to the result in Dufour.
Age and Re-Employment Prospects Supported a Longer Notice Period
The employee occupied a relatively unskilled, non-management position. Viewed in isolation, the character of her employment might have supported a more modest notice period. The remaining factors, however, pointed strongly in the opposite direction.
The employee was 65 years old when her employment ended, had nearly 10 years of service, had spent most of her working life in restaurant service, had limited computer and email skills and faced significant difficulty finding comparable replacement employment.
The Court expressly recognized that older workers may experience greater difficulty obtaining new employment and that age can therefore attract considerable weight in the reasonable notice analysis. Age was not treated as an automatic or dominant factor. Rather, it mattered because of its practical effect on the employee’s prospects of securing comparable employment.
The Court ultimately placed particular emphasis on the relative unavailability of similar employment for a 65 year old employee approaching retirement age. Taking the employee’s age, occupation, employment history, nearly 10 years of service, skills and realistic employment prospects together, the Court fixed the reasonable notice period at 11 months.
Lower-Skilled Employees Can Still Receive Significant Severance
One of the most important aspects of Dufour is that the Court did not treat occupational status as determinative. The employee was not an executive, manager, professional or highly specialized worker. She was a restaurant server and cashier. Nevertheless, the difficulty she was likely to experience replacing her employment supported a notice period approaching one year. The case is therefore useful authority against the assumption that lower paid or non-management employees are necessarily entitled to short notice periods.
In Alberta wrongful dismissal cases, the focus remains on the employee’s overall circumstances and the amount of time it would reasonably take that employee to secure comparable employment.
Does Being 65 Reduce Reasonable Notice?
The Court also considered the employee’s age from another perspective. At 65, she was receiving CPP and Old Age Security. The employer argued, in substance, that access to retirement-related income was relevant to her damages.
The Court acknowledged that individuals over 65 may have access to government benefits or private pension income that younger workers do not. However, it also recognized that many older employees continue to require employment income. The employee’s receipt of CPP, OAS and other government income supplements did not reduce her wrongful dismissal damages or her reasonable notice entitlement. An employee does not lose common law notice rights merely because they have reached traditional retirement age or become eligible for government retirement benefits.
Where an older employee intends to remain in the workforce, age may instead support a longer notice period where it makes obtaining comparable employment more difficult.
Mitigation: Employees Must Be Reasonable, Not Perfect
The employer also argued that the employee had failed to mitigate her damages. After termination, her job search was relatively informal. She primarily delivered resumes in person and contacted prospective employers by telephone, supplemented by some online applications. She maintained a handwritten job search journal documenting approximately 49 to 51 applications. The record was undated and not particularly detailed. The Court nevertheless rejected the employer’s mitigation defence.
It found that the employee had made commercially reasonable efforts having regard to her age, experience and technological abilities. The Court emphasized an important principle in Alberta wrongful dismissal law: mitigation efforts do not need to be perfect.
An employee is required to take reasonable steps to search for comparable employment. The employer bears the burden of proving that the employee failed to make reasonable efforts and that suitable employment could reasonably have been obtained. The assessment is contextual.
A court should not necessarily expect a 65 year old employee with limited computer and email skills to conduct the same type of online job search that might reasonably be expected of another employee with different experience and abilities. The adequacy of mitigation depends on what is reasonable for the particular employee in the particular circumstances.
The Result
The Court awarded the employee damages based on 11 months of reasonable notice, valued at $22,115.83. After deducting the approximately 5 weeks and 5 days of notice already provided, the employee received a net wrongful dismissal award of $19,564.08, plus interest and costs.
What Does Dufour Mean for Reasonable Notice in Alberta?
The central lesson from Dufour is that reasonable notice is concerned with an employee’s realistic prospects of replacing the employment they have lost, not simply the prestige, seniority or title associated with their position. A relatively lower-skilled employee may still receive a substantial common law notice period where the surrounding circumstances make re-employment particularly difficult.
For Alberta employees Dufour supports several important principles:
- Age can materially increase reasonable notice where it adversely affects the employee’s prospects of finding comparable work.
- Non-management and lower-skilled employees are not subject to an artificially low notice ceiling.
- Nearly 10 years of service can support a notice award approaching one year where the remaining Bardal factors point upward.
- The availability of comparable employment is a critical part of the reasonable notice analysis.
- Retirement eligibility does not eliminate or reduce common law notice rights merely because an employee is 65 or receives CPP or OAS.
- Mitigation is assessed reasonably, not perfectly, having regard to the employee’s age, experience, abilities and circumstances.
How Much Severance Are Employees Entitled to in Alberta?
There is no universal severance formula in Alberta. An employee’s entitlements may depend on whether there is an enforceable employment agreement, the minimum requirements of the Employment Standards Code, and whether the employee is entitled to greater common law reasonable notice.
Factors such as age, length of service, position, compensation, employment history, qualifications and the availability of comparable work can all affect the outcome. As Dufour demonstrates, an employee’s reasonable notice entitlement can be substantially greater than the minimum amounts required by employment standards legislation. Employees who have been terminated without cause should therefore be cautious about assuming that an employer’s initial severance offer represents their full legal entitlement
*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.
FAQs
How much reasonable notice is an employee entitled to in Alberta?
There is no fixed formula for determining reasonable notice in Alberta. Courts generally consider the Bardal factors, including the employee’s age, length of service, character of employment, and the availability of comparable employment having regard to the employee’s experience, training and qualifications.
In Dufour, the Court awarded 11 months of common law reasonable notice to a 65 year old restaurant server and cashier with approximately 9 years and 8 months of service. The decision confirms that reasonable notice is assessed on a case by case basis and may significantly exceed minimum Alberta Employment Standards entitlements.
Can an older employee receive more severance in Alberta?
Yes. Age can be an important factor in determining severance and reasonable notice in Alberta, particularly where it may make it more difficult for the employee to find comparable replacement employment.
Can a non-management or lower-skilled employee receive 12 months of severance in Alberta?
Potentially, yes. There is no rule that limits common law severance in Alberta based solely on an employee’s job title, income level or management status.
In Dufour, a non-management restaurant server and cashier received 11 months of reasonable notice despite occupying a relatively lower-skilled position. The case demonstrates that courts consider the employee’s overall circumstances, including age, service, employment history and realistic prospects of finding comparable work.
Does receiving CPP or Old Age Security reduce wrongful dismissal damages in Alberta?
Not necessarily. In Dufour, the employee was 65 and receiving Canada Pension Plan benefits and Old Age Security, but the Court held that these amounts did not reduce her wrongful dismissal damages or common law notice entitlement.
Reaching retirement age does not automatically mean an employee is expected to retire after termination. If an employee intends to remain in the workforce, their age may actually support a longer reasonable notice period where obtaining comparable employment is more difficult.
What is the duty to mitigate after a wrongful dismissal in Alberta?
An employee claiming wrongful dismissal damages in Alberta is generally required to take reasonable steps to find comparable replacement employment. However, mitigation does not require perfection.
In Dufour, the employee primarily searched for work by delivering resumes in person and making telephone calls, with some online applications. Although her job search records were imperfect, the Court found her efforts commercially reasonable given her age, experience and limited computer skills.
The employer bears the burden of proving that the employee failed to take reasonable steps to mitigate and that suitable employment could reasonably have been obtained.