ESA notice vs common law notice
Ontario Employment Standards Act notice is a statutory minimum: one week per year of service to a maximum of eight weeks, plus statutory severance pay (one week per year of service to twenty-six weeks) for employers with a payroll of at least $2.5 million provincial. Common law notice is what a court would order if the termination clause in your contract is unenforceable. Common law notice considers the Bardal factors and routinely produces twelve to twenty-four months of notice for senior or long-service employees.
The Bardal factors
Age. Length of service. Character of employment (more specialised positions get more notice). Availability of similar employment in the labour market. The factors are not formulaic, but a senior fifty-something executive with fifteen years of service in a niche field will routinely receive eighteen months of notice. A junior employee in a high-turnover role with one year of service will receive much less.
Why most termination clauses fail
Ontario courts have struck down a high percentage of termination clauses reviewed in the past five years. The leading cases are Waksdale v Swegon (2020) and Render v ThyssenKrupp Elevator (2022). Common defects: any-clause-illegal-strikes-the-entire-clause, failure to maintain ESA benefits during the statutory notice period, ambiguous just cause language, and definitions that conflict with the ESA. If your termination clause fails, you are entitled to common law notice, which is usually much greater.
The duty to mitigate
A dismissed employee is required to make reasonable efforts to find comparable work. If you find a new job inside the notice period, the new income is deducted from what the former employer owes. The duty does not require accepting the first available job at any pay. Reasonable efforts mean a real job search, documented over time. Save every application, recruiter call, and interview note.
How to read a severance offer
Three flags to take seriously. First, the offer references the ESA only. That is a floor, not a ceiling. Second, the offer demands a sign-by date within days. That date is rarely legally binding. Third, the release covers human rights, occupational health and safety, and reprisal claims for very modest additional consideration. Each of those claims has its own value.
Costs and how employment lawyers charge
Severance review consultations are commonly $300 to $600, often credited against fees if the firm is retained. Severance negotiation work is often contingency-based, with the firm taking a percentage of the value secured above the original offer. Litigated wrongful dismissal claims run hourly with retainers. Plaintiff-side employment firms in Canada typically do not charge for the first review of a severance package.