For decades, there was a kind of “rule of thumb” in Canadian wrongful dismissal employment law: if you were wrongfully dismissed, the most you could expect for reasonable notice was about 24 months. This wasn’t written in any statute, but it was treated as an unofficial ceiling by courts across the country.
That rule, however, is now showing cracks. Recent cases suggest that the once-solid 24-month cap may no longer be as firm as employers once assumed.
A Short History of the 24-Month “Cap”
When employees are dismissed without cause and without an enforceable contract limiting notice, the courts turn to the common law to determine what’s “reasonable.” Judges look at several factors — often called the Bardal factors — such as:
- the character of the employment,
- length of service,
- age of the employee, and
- the availability of comparable work.
For years, courts were reluctant to grant notice beyond two years, even in cases of long-serving and senior employees. The thinking was that, absent truly “exceptional circumstances,” 24 months was the upper limit.
The Wrongful Dismissal Ceiling Under Pressure
That ceiling is now under fire.
- In Lynch v. Avaya Canada, an employee with nearly 40 years’ service, specialized in proprietary software, was awarded 30 months’ notice. Lynch v. Avaya Canada Corporation, 2023 ONCA 696 (CanLII), <https://canlii.ca/t/k0qrd>
- In Milwid v. IBM Canada, the Ontario Court of Appeal upheld a 27-month award for a manager with 38 years of service. Milwid v. IBM Canada Ltd., 2023 ONCA 702 (CanLII), <https://canlii.ca/t/k0qrg>
- In Lischuk v. K-Jay Electric (Alberta), a general manager with 34 years at one company was awarded 26 months. Lischuk v K-Jay Electric Ltd, 2025 ABKB 460 (CanLII), <https://canlii.ca/t/kdl7m>
What ties these cases together? Age, long service, and — most importantly — highly specialized, non-transferable skills. In other words, these were employees who were not just loyal and senior, but whose expertise was so particular to their former employer that finding comparable work would be extraordinarily difficult.
What This Means for Employers
For employers, the lesson is clear: the old “two-year maximum” cannot be relied on. Where an employee is:
- older,
- long-tenured, and
- highly specialized,
the exposure may stretch well beyond 24 months.
The best protection is still a well-drafted employment contract with an enforceable termination clause. Without one, courts will fall back on common law principles, and the potential liability is significant.
Employers should also remember that damages aren’t limited to base salary. Bonuses, incentive plans, and other forms of compensation are often included in notice awards — sometimes even when plan language suggests otherwise.
What This Means for Employees
For employees, especially those in senior or specialized roles with long service, these cases are encouraging. They underline that courts will take into account the practical realities of re-employment. If your skill set is tied tightly to one industry or even one company, your notice entitlement may exceed what was once thought possible.
That said, not every case will justify more than 24 months. These remain exceptional outcomes, and most employees will fall within a more traditional range. Still, the ceiling is no longer absolute.
The Takeaway
The law of reasonable notice is evolving. Employers should not assume the 24-month “cap” will shield them from greater liability. Employees should not assume that two years is the maximum they can claim.
Both sides are better served by understanding that context matters: the nature of the job, the employee’s age, service length, skill set, and the realities of the labour market all shape the result.
If you are facing a termination — whether as an employer trying to manage risk or as an employee navigating next steps — seeking legal advice early can make all the difference.