Student Author: Kristy Milland is a second year JD student at the University of Toronto, Faculty of Law
Since the decision in Bardal v Globe & Mail[1] in 1960, courts have relied on the set of factors Chief Justice McRuer laid out when calculating the length of the reasonable notice period to be awarded to a terminated employee. These “Bardal factors” include the length of the worker’s service, age of the worker at termination, character of the job they have lost, and availability of similar employment.[2] Of course, #COVID19 was not a consideration when this case was decided, but it will greatly impact how the factors are weighed in court decisions as individuals are laid off or constructively dismissed during the pandemic.
It is important to understand the economic context COVID19 has created before considering the Bardal factors in turn. Canada lost one million jobs in March, and it is estimated that another 1.8 million workers will have lost their jobs by the end of April. If the economic lockdown continues into the summer, millions more may be out of work. More than six million Canadians have already applied for the Canada Emergency Response Benefit (CERB) as of April 14th. The market is likely saturated with individuals who need work. This is not only because non-essential businesses are closing, but because dwindling customer numbers are closing the doors on essential businesses as well. Yet the companies which are hiring– grocery, department, and dollar stores, as well as fast food restaurants– put their workers face to face with customers, increasing the workers’ risk of contracting the disease. Out of work individuals now have to battle for jobs which could lead to a battle for their lives. These conditions will likely impact how courts calculate reasonable notice.
In light of these conditions, whether the importance of “length of service” in calculating reasonable notice changes due to the pandemic likely depends on the worker in question. As affirmed by Justice Lederer in Drysdale v Panasonic Canada a longer length of service should lead to a longer notice period, partially because potential employers may view the employee as not being as adaptable to a change in job and thus less employable.[3] Someone who has worked in retail for a long time may find it easier to secure employment today as retailers are desperate to hire workers, and thus little adaptation would be necessary. This could decrease the notice period reasonable for that worker.
Yet someone who has worked as a Registered Massage Therapist for a long time may struggle to find work, as the only massage establishments which remain open would be flouting the law and thus putting their licensing at risk, and the ability to work a trapezius muscle into a relaxed state is not the same as massaging dough in a pizza parlour. As Lederer J indicated, such a worker will be assumed to struggle to adapt to a job so disparate from their established skills. Thus, a long work term for an employee with specialized skills could theoretically lead to a longer notice period in the times of COVID19.
“Age”, the Bardal factor with the second most weight in reasonable notice calculations, may have even more significance during the COVID19 pandemic. In McKinney v University of Guelph, the Supreme Court explained that older workers are at a disadvantage in the general job market as they are less flexible, higher paid, and less likely to have modern skills than their younger counterparts. This puts them at a disadvantage in today’s job market, where companies attempting to remain viable slough off higher paid workers and hire lower paid workers to replace them where possible.
Yet there is a second threat to older workers in a job market where most opportunities require workers to interact directly with customers. Age is the most important factor determining hospitalization and morbidity due to COVID19, with those over the age of 65 most threatened, while those over 35 who have comorbidities, such as obesity, respiratory issues, or heart conditions, also facing peril. As a result, workers who fit these demographics take great risk in accepting a job which puts them at heightened risk for contracting COVID19, and yet those may be the only jobs available today. Thus, age may play a more significant role than ever in increasing the reasonable notice due to a worker who loses their job during the COVID19 pandemic.
“Character of employment” has declined in importance in recent years.[4] The distinction in character of employment has traditionally lied between managerial and non-managerial labour, with the claim that higher levels of management experience lead to fewer comparable job market opportunities post-termination.[5] There are statistics that support this claim, with managerial positions dwindling in number since 1995 as companies attempt to flatten their hierarchies and reduce their payroll. While the courts may not doubt this reality, in recent years they have pushed back against the long-standing practice of granting longer notice to managers on the basis that non-managerial employees also struggle to find new jobs.[6] In Medis, Justice Drapeau quoted Ronald A. Pink, Q.C., asking “if justice is blind, why does it see rich businessmen as more needy than clerks?”[7]
However, with mass layoffs of managerial staff due to the pandemic, the debate may enjoy a resurgence. Today, the difficulty in finding a management position may be more extreme than ever, and the wrongful termination cases filed in the coming months may reanimate the debate over how much weight to attribute to the character of employment. Managers are likely to claim longer notice periods to maintain their finances until they can find a new comparable job, which may not in fact ever appear or at least will take a longer time to materialize than would have been the case before COVID19. COVID19 may challenge prevailing assumptions that workers with managerial or “marketable” skills will have an easier time finding alternative work in a drastically downsized economy. [8]
“Availability of similar employment” has always been the most important factor in determining the likelihood of actually attaining new employment, and yet the courts tend not to afford this factor much weight. The competing needs of employers and employees during times of economic strife lead the courts to take a middle ground in regard to this factor. As Professor Doorey explains, when the economy is bad workers have a harder time finding a new job and thus require a longer notice period in order to survive, while employers attempting to stay afloat are less able to foot the bill[9], so courts consider the availability of similar employment, but give it less emphasis than the other three factors.[10]
Yet poor economic conditions play a role in all four of the Bardal factors, as a bad economy will make the job search more dire for high and uniquely skilled older workers. Thus, while the fact that COVID19 has reduced managerial job opportunities by itself may have diminished weight, the impact of the economic freeze on the other factors means that this reduction in opportunity plays a role in the calculation nonetheless.
COVID19 creates complex problems and it will impact our economy significantly in the months and years to come. Many will lose their jobs, and some will go to court to fight for a greater period of notice. Utilization of the Bardalfactors in these conditions will be affected by unique considerations not pondered before, such as the connection between age and mortality from COVID19 and the associated increased risk for unemployed individuals seeking work. It will be interesting to see if a stark divide appears between young, novice workers and older, skilled workers when it comes to the length of reasonable notice. Whether these contextual interpretations of the Bardal factors help workers or employers more remains to be seen.
Kristy Milland, “Wrongful Dismissal, the ‘Bardal’ Factors and COVID19” Canadian Law of Work Forum (April 15 2020): https://lawofwork.ca/?p=12303
Kristy Milland received her master’s degree in Work and Society from McMaster University and is currently a second-year JD candidate at the University of Toronto.
[1][1960] 24 DLR (2d), 140 (Ont HC).
[2] Ibid at para 21.
[3] Drysdale v Panasonic Canada Inc., 2015 ONSC 6878 (CanLII), citing Ansari v BC Hydro & Power Auth, 1986 CanLII 1023 (BCSC).
[4] See e.g. Drysdale, ibid. at para 15.
[5]See DiTomaso v. Crown Metal Packaging LP,2011 ONCA 469.
[6] See Medis Health and Pharmaceutical Services Inc. v. Bramble, 1999 CanLII 13124 (NBCA) [Medis]
[7]Ibid at para 52.
[8] See DiTomaso, supra note 5 at paras 27-28; Arnone v Best Theratronics Ltd, 2015 ONCA 63 at para 11; Zoldowski v Strongco Corporation, 2015 ONSC 5485 at para 14; Drysdale, supra note 3 at para 15.
[9]See Michela v St Thomas of Villanova Catholic School, 2015 ONCA 801 at para 17, noting that: “an employer’s financial circumstances are not relevant to the determination of reasonable notice in a particular case: they justify neither a reduction in the notice period in bad times nor an increase when times are good.” While the poor economic situation employers face in a down market may influence how the availability of similar employment is considered doctrinally, it is not to be considered in and of itself when calculating reasonable notice.
[10] David J Doorey, The Law of Work, 2nd Ed (Toronto: Emond Montgomery Publications Limited, 2020) at 164-165.
