Employment Law Issues (9:V) - Revision history

LSLAP at 19:10, 13 October 2025

2025-10-13T19:10:19Z

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	{{REVIEWED LSLAP \| date= August ~~21, 2024~~}}		{{REVIEWED LSLAP \| date= 1 August 2025}}
	{{LSLAP Manual TOC\|expanded = employment}}		{{LSLAP Manual TOC\|expanded = employment}}

LSLAP: /* c) Reasonable Notice at Common Law – Indefinite Term Contracts */

2025-10-01T04:17:50Z

c) Reasonable Notice at Common Law – Indefinite Term Contracts

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	These are known as the ''Bardal'' factors. The Supreme Court of Canada has endorsed this list of factors in a number of cases; see e.g. ''[https://canlii.ca/t/1z469 Honda Canada Inc v Keays]'', 2008 SCC 39, 2 SCR 362. However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. Notably, the financial health of a company does not reduce its notice obligations to employees (''Michela v. St. Thomas of Villanova Catholic School'', 2015 ONCA 801).		These are known as the ''Bardal'' factors. The Supreme Court of Canada has endorsed this list of factors in a number of cases; see e.g. ''[https://canlii.ca/t/1z469 Honda Canada Inc v Keays]'', 2008 SCC 39, 2 SCR 362. However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. Notably, the financial health of a company does not reduce its notice obligations to employees (''Michela v. St. Thomas of Villanova Catholic School'', 2015 ONCA 801).

	The maximum amount of “reasonable notice” that an employee may be entitled to is usually 24 months. This is generally for long-term, older, and senior-level employees. There are some cases beyond this 24-month limit, but these cases are the exception. Long term employees working for employers their entire lives and dismissed in their late 60s and early 70s have ~~been trying~~ to claim severance of 30 or more months. However, in ''[https://canlii.ca/t/j12wp Dawe v. Equitable Life Insurance Company of Canada]'', 2019 ONCA 512, the Ontario Court of Appeal decision suggests that “''exceptional circumstances''” must be present to award a notice period above 24 months, and that lengthy service and age would not generally suffice to enlarge the “cap” of beyond twenty-four (24) months.		The maximum amount of “reasonable notice” that an employee may be entitled to is usually 24 months. This is generally for long-term, older, and senior-level employees. There are some cases beyond this 24-month limit, but these cases are the exception. Long term employees working for employers their entire lives and dismissed in their late 60s and early 70s have tried to claim severance of 30 or more months. However, in ''[https://canlii.ca/t/j12wp Dawe v. Equitable Life Insurance Company of Canada]'', 2019 ONCA 512, the Ontario Court of Appeal decision suggests that “''exceptional circumstances''” must be present to award a notice period above 24 months, and that lengthy service and age would not generally suffice to enlarge the “cap” of beyond twenty-four (24) months.

	==== d) Calculating Reasonable Notice ====		==== d) Calculating Reasonable Notice ====

LSLAP: /* 4. Without Cause Dismissal and Reasonable Notice */

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4. Without Cause Dismissal and Reasonable Notice

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	The employee would then continue to work and get paid for three weeks, at which point the employee’s employment would end. This process of providing advance notice of dismissal is called Working Notice.		The employee would then continue to work and get paid for three weeks, at which point the employee’s employment would end. This process of providing advance notice of dismissal is called Working Notice.

	In the same example, if the employer wants to end the employment immediately and does not want the employee to continue to work for the three-week notice period, the employer could pay the employee three weeks compensation ‘in lieu’ of notice. The employee’s employment would end immediately after receiving the notice, and the employee would get paid three weeks’ ~~wages~~ instead of continuing to work. There can also be a combination of the two (e.g. one week of work and then two weeks of pay instead of work).		In the same example, if the employer wants to end the employment immediately and does not want the employee to continue to work for the three-week notice period, the employer could pay the employee three weeks compensation ‘in lieu’ of notice. The employee’s employment would end immediately after receiving the notice, and the employee would get paid three weeks’ pay instead of continuing to work. There can also be a combination of the two (e.g. one week of work and then two weeks of pay instead of work).

	The ''ESA'' and ''Canada Labour Code'' set the minimum standard, by law, for reasonable notice. However, past court decisions (i.e. the ‘common law’) have found that in certain situations, an employee may be entitled to more than these minimums. If an employees’ situation is similar to the following examples of case law, they may be entitled to more than the statutory minimums for notice.		The ''ESA'' and ''Canada Labour Code'' set the minimum standard, by law, for reasonable notice. However, past court decisions (i.e. the ‘common law’) have found that in certain situations, an employee may be entitled to more than these minimums. If an employees’ situation is similar to the following examples of case law, they may be entitled to more than the statutory minimums for notice.

LSLAP: /* e) Termination Clause Does Not Meet ESA Minimums */

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e) Termination Clause Does Not Meet ESA Minimums

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	However, this principle may have been qualified with respect to severance clauses and fixed term contracts (see ''[https://canlii.ca/t/g0b9t Miller v Convergys CMG Canada Limited Partnership]'', 2013 BCSC 1589 (upheld on appeal); ''[https://canlii.ca/t/2d6v5 Rogers v Tourism British Columbia]'', 2010 BCSC 1562).		However, this principle may have been qualified with respect to severance clauses and fixed term contracts (see ''[https://canlii.ca/t/g0b9t Miller v Convergys CMG Canada Limited Partnership]'', 2013 BCSC 1589 (upheld on appeal); ''[https://canlii.ca/t/2d6v5 Rogers v Tourism British Columbia]'', 2010 BCSC 1562).

	In ''[https://canlii.ca/t/j89s5 Waksdale v. Swegon North America Inc.]'', 2020 ONCA 391, the ONCA ruled that if a section of a termination provision violated the ''ESA'' (even if distinct and separate from other sections) the entire termination provision ~~will be~~ void. The court refused to apply the general severability clause on the basis that once the clause is void, there is nothing to sever. The Court identified policy reasons for this decision, highlighting that even if an employer does not rely on an illegal termination provision, it may still gain the benefit of that illegal clause, as employees “may incorrectly believe they must behave in accordance with these unenforceable provisions.”		In ''[https://canlii.ca/t/j89s5 Waksdale v. Swegon North America Inc.]'', 2020 ONCA 391, the ONCA ruled that if a section of a termination provision violated the ''ESA'' (even if distinct and separate from other sections) the entire termination provision is void. The court refused to apply the general severability clause on the basis that once the clause is void, there is nothing to sever. The Court identified policy reasons for this decision, highlighting that even if an employer does not rely on an illegal termination provision, it may still gain the benefit of that illegal clause, as employees “may incorrectly believe they must behave in accordance with these unenforceable provisions.”

	==== f) No Severance Ceiling Set out in Termination Clause ====		==== f) No Severance Ceiling Set out in Termination Clause ====

LSLAP: /* D. Breach of Employment Contract Claim */

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D. Breach of Employment Contract Claim

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	An employee may have a claim for breach of contract if they were fired without reasonable notice or paid money in lieu of reasonable notice (i.e. severance). The failure to provide reasonable notice (or pay in lieu) is also referred to as a wrongful dismissal. See [[Section V.C: Termination of Employment (V.C) \| Section V.C: Termination of Employment]].		An employee may have a claim for breach of contract if they were fired without reasonable notice or paid money in lieu of reasonable notice (i.e. severance). The failure to provide reasonable notice (or pay in lieu) is also referred to as a wrongful dismissal. See [[Section V.C: Termination of Employment (V.C) \| Section V.C: Termination of Employment]].

	Courts may rule ~~favorably for~~ employees in costs ~~awards~~ where an employee is forced to sue to obtain a reasonable severance. In ''Janmohamed v Dr . Zia Medicine PC'', 2022 ONSC 6561, the parties could not agree on a costs valuation after the plaintiff accepted the defendant’s Rule 49 offer. The Court awarded the plaintiff a significant costs award on the basis that the employers should not be incentivized to offer employees insufficient severance, forcing employees to sue to obtain what is justly due.		Courts may rule in favour of employees to cover the costs of legal services where an employee is forced to sue to obtain a reasonable severance. In ''Janmohamed v Dr . Zia Medicine PC'', 2022 ONSC 6561, the parties could not agree on a costs valuation after the plaintiff accepted the defendant’s Rule 49 offer. The Court awarded the plaintiff a significant costs award on the basis that the employers should not be incentivized to offer employees insufficient severance, forcing employees to sue to obtain what is justly due.

	=== 2. Constructive Dismissal Claims ===		=== 2. Constructive Dismissal Claims ===

LSLAP: /* e) COVID-19 and Vaccine Passports */

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e) COVID-19 and Vaccine Passports

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	'''Vaccine passports'''		'''Vaccine passports'''

	In ''[https://www.bccourts.ca/jdb-txt/sc/22/16/2022BCSC1603.htm Kassian v. British Columbia]'', 2022 BCSC 1603, three petitioners ~~challenged the constitutionality of the~~ vaccine passport ~~provisions~~. ~~Specifically, they~~ argued that the medical ~~exemption regime~~ discriminated against ~~persons~~ with disabilities, contrary to section 15 of the ''Charter'', and is unjustly coercive, contrary to section 7 of the ''Charter''. The BCSC ~~explained~~ that the petitioners did not ~~exhaust~~ the ~~remedies~~ available to them under the legislative scheme; specifically, there was no evidence that the petitioners pursued the necessary medical opinions to support exemption requests from the vaccine passport. ~~As such, the~~ court declined to address the petitioner’s ''Charter'' claims.		In ''[https://www.bccourts.ca/jdb-txt/sc/22/16/2022BCSC1603.htm Kassian v. British Columbia]'', 2022 BCSC 1603, three petitioners argued that vaccine passport were unconstitutional. They argued that the need to prove medical exemptions discriminated against people with disabilities, contrary to section 15 of the ''Charter'', and were unjustly coercive, contrary to section 7 of the ''Charter''. The BCSC found that the petitioners did not try all the options available to them under the legislative scheme; specifically, there was no evidence that the petitioners pursued the necessary medical opinions to support exemption requests from the vaccine passport. The court declined to address the petitioner’s ''Charter'' claims.

	'''Mandated vaccination to enter certain businesses and attend events'''		'''Mandated vaccination to enter certain businesses and attend events'''

LSLAP: /* e) COVID-19 and Vaccine Passports */

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e) COVID-19 and Vaccine Passports

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	'''Mandated vaccination to enter certain businesses and attend events'''		'''Mandated vaccination to enter certain businesses and attend events'''

	In ''[https://www.bccourts.ca/jdb-txt/sc/22/16/2022BCSC1604cor1.htm Eliason v. British Columbia (Attorney General)]'', 2022 BCSC 1604, the petitioners ~~sought~~ judicial review ~~realted certain~~ public health orders ~~which~~ mandated vaccination ~~as a prerequisite~~ for entry to certain businesses and events. The petitioners did not challenge the unconstitutionality of the public health orders themselves~~; rather, they alleged~~ that it was unconstitutional for the government to provide “an effective, comprehensive, and accessible regime for medical exemptions in the Orders provisions” (para. 37). The Courts declined to consider the petitioners argument ~~in respect to a~~ Charter violation~~, on the grounds that~~ two of the petitioners ~~had alternate remedies available~~ to ~~them (in this case,~~ vaccine ~~exemption requests)~~.		In ''[https://www.bccourts.ca/jdb-txt/sc/22/16/2022BCSC1604cor1.htm Eliason v. British Columbia (Attorney General)]'', 2022 BCSC 1604, the petitioners asked for judicial review related to the public health orders that mandated vaccination for entry to certain businesses and events. The petitioners did not challenge the unconstitutionality of the public health orders themselves but claimed that it was unconstitutional for the government to provide “an effective, comprehensive, and accessible regime for medical exemptions in the Orders provisions” (para. 37). The Courts declined to consider the petitioners argument for the Charter violation because two of the petitioners were able to request vaccine exemptions.

	For further examples, see ''Maddock v. British Columbia'', 2022 BCSC 1605 and ''Canadian Society for the Advancement of Science in Public Policy v. British Columbia'', 2022 BCSC 1606.		For further examples, see ''Maddock v. British Columbia'', 2022 BCSC 1605 and ''Canadian Society for the Advancement of Science in Public Policy v. British Columbia'', 2022 BCSC 1606.

LSLAP: /* e) COVID-19 and Vaccine Passports */

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e) COVID-19 and Vaccine Passports

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	==== e) COVID-19 and Vaccine Passports ====		==== e) COVID-19 and Vaccine Passports ====

	Courts in British Columbia have generally dismissed constitutional challenges and civil suits brought against the province ~~in relation to the~~ vaccine passport, COVID-19 restrictions, and health orders arising from the pandemic. The following decisions are examples:		Courts in British Columbia have generally dismissed constitutional challenges and civil suits brought against the province about vaccine passport, COVID-19 restrictions, and health orders arising from the pandemic. The following decisions are examples:

	'''Vaccine passports'''		'''Vaccine passports'''

LSLAP: /* d) Canadian Emergency Response Benefit (“CERB”) and Damages */

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d) Canadian Emergency Response Benefit (“CERB”) and Damages

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	==== d) Canadian Emergency Response Benefit (“CERB”) and Damages ====		==== d) Canadian Emergency Response Benefit (“CERB”) and Damages ====

	There is evolving ~~jurisprudence~~ on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal. A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see ''[https://canlii.ca/t/jghck Slater v. Halifax Herald Limited]'', 2021 NSSC 210 & Fogelman v. IFG, 2021 ONSC 4042). However, as this question is relatively new and is evolving, be sure to review the most current state of the law on this issue.		There are evolving decisions on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal. A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see ''[https://canlii.ca/t/jghck Slater v. Halifax Herald Limited]'', 2021 NSSC 210 & Fogelman v. IFG, 2021 ONSC 4042). However, as this question is relatively new and is evolving, be sure to review the most current state of the law on this issue.

	==== e) COVID-19 and Vaccine Passports ====		==== e) COVID-19 and Vaccine Passports ====

LSLAP: /* c) Farm Labourers and Domestic Workers */

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c) Farm Labourers and Domestic Workers

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	The ''ESA'' has special provisions for farm and domestic labourers. See the Act and Regulation for more details. A domestic worker must have a written employment contract and be registered with the Employment Standards Branch (''ESA'', ss 14 and 15). The Employment Standards Branch is working in cooperation with federal immigration officials to curb abuses of the program. The federal agency will ensure that the employer is registered with the Branch before entry of a new immigrant is authorized. In 2002, under the banner of creating a more flexible workforce, the ''ESA'' was changed to exclude domestic and farm workers from certain overtime laws. Essentially domestic and farm workers can have their hours averaged without the need for consent (see above at [[{{PAGENAME}}#h) Averaging Agreements \| Section V.A.6(h): Averaging Agreements]]).		The ''ESA'' has special provisions for farm and domestic labourers. See the Act and Regulation for more details. A domestic worker must have a written employment contract and be registered with the Employment Standards Branch (''ESA'', ss 14 and 15). The Employment Standards Branch is working in cooperation with federal immigration officials to curb abuses of the program. The federal agency will ensure that the employer is registered with the Branch before entry of a new immigrant is authorized. In 2002, under the banner of creating a more flexible workforce, the ''ESA'' was changed to exclude domestic and farm workers from certain overtime laws. Essentially domestic and farm workers can have their hours averaged without the need for consent (see above at [[{{PAGENAME}}#h) Averaging Agreements \| Section V.A.6(h): Averaging Agreements]]).

	Most migrant farm labourers will be paid ~~in accordance with~~ the amount of work produced (i.e., payment per weight of crop picked). While this is legal, ~~it should be noted that~~ hours must still be recorded, and payments made for the purpose of Employment Insurance. Abuses by employers in this area have been significant, and workers should be aware that the government may try to collect EI from their paycheques if it is not reported.		Most migrant farm labourers will be paid according to the amount of work that’s produced (i.e., payment per weight of crop picked). While this is legal, hours must still be recorded, and payments still must be made for the purpose of Employment Insurance. Abuses by employers in this area have been significant, and workers should be aware that the government may try to collect EI from their paycheques if it is not reported.

	:'''NOTE:''' The federal government, through Citizenship and Immigration Canada administers the Live-in Caregiver Program. The Program came into effect on April 27, 1992. The purpose of the program is to prevent abuse and exploitation of domestic workers. The program was to clarify the employer-employee relationship by providing information on the terms and conditions of employment and on the rights of workers under Canadian law. The program also sets out educational requirements for live-in caregivers which are designed to aid a worker’s ability to get a job after gaining permanent residency status and leaving domestic employment. Requirements for Live-In Caregivers are high which forms a barrier for workers entering Canada. The program requires:		:'''NOTE:''' The federal government, through Citizenship and Immigration Canada administers the Live-in Caregiver Program. The Program came into effect on April 27, 1992. The purpose of the program is to prevent abuse and exploitation of domestic workers. The program was to clarify the employer-employee relationship by providing information on the terms and conditions of employment and on the rights of workers under Canadian law. The program also sets out educational requirements for live-in caregivers which are designed to aid a worker’s ability to get a job after gaining permanent residency status and leaving domestic employment. Requirements for Live-In Caregivers are high which forms a barrier for workers entering Canada. The program requires: