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Li: You Can't Fire Me: The Problems with Wrongful Dismissal Damages i
YOU CAN'T FIRE ME:
THE PROBLEMS WITH WRONGFUL DISMISSAL DAMAGES IN
CANADA
CHENYANG LI*
There can be no catalogue laid down as to what is reasonable notice in particular
classes of 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.1
Who could have foreseen that this paragraph, from the short seven-page
judgement in Bardal v Globe & Mail Ltd,2 would come to have such great impact on
nearly every Canadian individual and enterprise? This passage, which has given rise to
what are known as the Bardal Factors,3 has been cited in over 1,500 subsequent
judgments with near universal approval and application.4 Few other trial court
judgments can claim to have been so persuasive on every decision-making forum in
Canada, from the lowest labour tribunals through to the country's apex court.
This feat is especially impressive given the lack of appellate court discussion of
the legal principles underlying Bardal's interpretation of reasonable notice in
employment law. However, such a discussion is warranted given the pervasive impact
reasonable notice has on the lives of most Canadians. Dickson CJ perhaps most
elegantly stated the integral connection between our lives and our work:
Work is one of the most fundamental aspects in a person's life, providing the
individual with a means of financial support and, as importantly, a contributory
Copyright D 2017 by Chenyang Li
* Chenyang obtained an undergraduate degree in business and a JD from the University of Western
Ontario. He previously worked in corporate strategy and marketing. He is currently completing his
articles at Davies Ward Phillips & Vineberg LLP in Toronto and is excited to start clerking at the Court
of Appeal for Ontario in August 2017.
1 Bardal v Globe & Mail Ltd (1960), 24 DLR (2d) 140 (Ont HCJ) at para 21 [Bardal].
2 Ibid.
3 The Bardal Factors are commonly distilled as: (1) character of employment at the time of dismissal, (2)
length of service of employee, (3) age of the employee at the time of dismissal, and (4) availability of
similar employment.
4 Electronic searches on the LexisNexis Quicklaw and WestlawNext Canada databases generated results
of 1,583 and 1,450 cases and decisions, respectively.
Published by Scholarship@Western, 201'](ViewImageLocal?handle=hein.journals/wesjalals7&div=1&collection=&method=preview&ext=.png&size=3)
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