To think of the amount due as reasonable notice damages for dismissal without

cause in absence of an enforceable employment contract is not a definite factor

to be ascertained in numbers and neither is it any rocket science. There is no
math involved in the calculation towards awarding a severance package for
dismissal without cause but legal governing factors ascertaining the same.
(French, 2014)

Reasonable notice took to a different tangent in the 1997 landmark judgment

“Wallace v. United Grain Growers Ltd.” where bad faith on the part of the
employer led to what came to be understood as a Wallace Bump (Extension in
reasonable notice period). In colloquial terms what came to be called as Wallace
Damages/Bump led to many arbitrary decisions in the name of reasonable
notice. (French & Treleaven, 2014). The SC of Canada, In Re: Machtinger v.
HOJ Industries considered Bardal factors as the base to analyze what
reasonable notice would mean. This case reiterated on the fact that to
authenticate the trueness of reasonable notice, there are certain aspects implied
my law which need to be satisfied. These factors could range from Character of
employment, Age, Length of service or Availability of comparable
employment. (Hunter, 2021)

Looking at the factors in depth and analyzing reasonable notice would require
the same to be ascertained legally, however, it would be correct to mention that
the maximum period of notice that is awarded to a dismissed employee is 24
months with the minimum starting from a week depending on the number of
years contributed.

 Age: The decision depending on the factor of Age for reasonable notice
to be ascertained was emphasized in 2019 in Dawe v. The Equitable Life
Insurance Company of Canada. While the court clearly emphasized that
reasonable notice is ascertained on a case-to-case basis, the maximum
period cannot exceed 24 months. (White, 2019) Taking into consideration
present scenario, where 66-year-old Hussain has served 36 years, as a lab
technician, the minimum reasonable notice that should be awarded to him
is 8 weeks and the maximum being as decided by the court of law. Also,
considering that Hussain has crossed the set retirement age of 65, he must
be awarded a longer notice period to find a job in a competitive
environment.
Case: Strudwick v. Applied Consumer and Clinical evaluations Inc., the
same concept re-inforced that very rarely can any case award a
reasonable notice bandwidth exceeding 24 months. In the present case,
the court refused to increase the base notice of 20 months.
 Length of Service: Technically speaking longer service employees are
awarded longer notice period allowances and vice-versa for people
having worked for shorter periods. As a matter of fact, when a particular
person gives a considerable number of work years to a particular change,
it will come across to any new potential employer about the employee
being perfect and comforted in his job environment and not adaptable to
change. (LLP, 2022)

In Re: Ansari v. British Columbia Hydro and Power Authority,

[1986] BCJ No. 3005 (BCSC)- “it has been said that “a long-term
employee has a moral claim which has matured into a legal entitlement
to a longer notice period.” (White 2019)
In the present scenario, Hussain considerably served 36 years and gave
his all to one employer. A reasonable amount of time must be awarded to
him given he probably was accustomed and tuned to further be able to
accept sudden new changes and factors like this would hinder his
capacity to grasp new things.

 Character of Employment: This Bardal factor has got to base its

understanding from the skill set and seniority of the employee who has
been dismissed without cause. Character of employment would suggest
skill and therefore it would best be understood that high skilled workers
should be awarded a longer notice period and otherwise for unspecialized
on unskilled workers. (LLP, 2022). In Re: Love v. Acuity Investment
management Inc. (2011 ONCA 130), the court was of the opinion as
referenced in Paragraph 22, that a high skilled worker should be
allotted a longer period given there is possibility of lesser opportunities
for a particular high skill set.
In the present scenario, Hussain however not a high skilled worker was
still a worker that required precision. In such a case, when he was
dismissed without cause he must be awarded a reasonable period of time
to be able to find a job of the right fit. The character of Hussain’s
employment was one being a physical one and her dismissal at his age
will require much efforts to be able to explore the markets requiring his
skill set.

 Availability of Comparable Employment: Comparatively, this has to be

one of the important Bardal factors because a longer notice period award
on dismissal is required to be able to mitigate such loss. In Re: Belzberg
v. Pollock (2003) BCCA 71, the court remarked saying finding similar
employment would be harder that said or thought of. Hence a longer
period must be awarded to find a job in a like field. While Character of
Employment and Availability of similar employment are more like
 Siamese twins, the illusive difference to be made note of is the
categorization of employment to be able to decide reasonable notice.
(Martin, 2017)
In the case of Hussain, his circumstances would require for him to be
awarded a longer notice period to find similar work.

To sum up, all 4 factors will apply to Hussain as he falls under the senior
citizen category, where he has already given 36 years of his life to being a
lab technician for one employer. Also, as a lab technician, his work is one
precision and detail to eye and therefore he must be awarded a reasonable
notice period which suffices the requirement to be able to mitigate his
loss and in accordance of the Employments Standards Act, 2000.

References:
1. Shana French & Ryan Treleaven, 2014. “The Elusive Magic Number”.
https://www.sherrardkuzz.com/wp-content/uploads/2018/10/2014-
08_elusive_magic_number.pdf , retrieved on 2023-01-23
2. Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1
SCR 986,
https://www.canlii.org/en/ca/scc/doc/1992/1992canlii102/1992canlii102.
html, retrieved on 2023-01-23
3. Amanda Hunter. 2021, May 18,” Wrongful Dismissal Update”
https://hunterliberatore.ca/wrongful-dismissal-update/ , retrieved on
2023-01-23
4. Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA
512 (CanLII),
https://www.canlii.org/en/on/onca/doc/2019/2019onca512/2019onca512.
html , retrieved on 2023-01-23
5. Ansari v. B.C. Hydro & Power Auth., 1986 CanLII 1023 (BC SC),
https://www.canlii.org/en/bc/bcsc/doc/1986/1986canlii1023/1986canlii10
23.html , retrieved on 2023-01-23
6. Phil White. (2019, December 11), “Calculating the length of reasonable
notice”,
https://employmentlaw101.ca/termination-without-cause/determining-
the-length-of-reasonable-notice-period/ , retrieved on 2023-01-23

7. LLP, W. on behalf of G. G. F. H. (2022, April 14). Length of the

Reasonable Notice Period. Grosman Gale Fletcher Hopkins LLP.
https://www.grosman.com/blog/uncategorized/how-long-is-the-period-of-
 reasonable-notice-for-termination-without-cause/ , retrieved on 2023-01-
23
8. Love v. Acuity Investment Management Inc., 2011 ONCA 130 (CanLII), 
https://www.canlii.org/en/on/onca/doc/2011/2011onca130/2011onca130.
html, retrieved on 2023-01-23
9. Belzberg v. Pollock, 2003 BCCA 71 (CanLII), 
https://www.canlii.org/en/bc/bcca/doc/2003/2003bcca71/2003bcca71.htm
l , retrieved on 2023-01-23
10.Martin. (2017). Bardal Factors and the Reasonable Notice Limit – When
to see an Employment Lawyer – Z Legal Litigation Lawyer | Toronto,
Canada. Zlegal.ca. https://zlegal.ca/news-posts/bardal-factors-and-the-
reasonable-notice-limit-when-to-see-an-employment-lawyer/