BC Severance Law

As discussed below, there is no simple formula that can be used to calculate severance according to the common law. Instead, Judges will assess a number of key factors, giving each factor its due weight based on the specifics of each case.

While this means that it is impossible to know in advance exactly how much common law severance an employee is entitled to, it also means that we can use previous decisions (case law – the more similar the case to your particular situation the better) to determine a likely range of outcomes.

So how do you use case law to calculate severance?

“Can I use an online severance calculator to find out how much severance I am owed?“

Online severance calculators, especially free ones where you enter a few key pieces of information, will not account for many important characteristics of your previous employment and your future employment prospects. They can be useful in helping you determine if your employer’s severance or termination package is broadly within the realm of what is reasonable but will rarely provide you with case law similar enough to your circumstances to serve as support in negotiating a higher severance package.

In short, no; our firm has – on several occasions – addressed emails from clients containing AI-generated “case law,” often indicating a much higher notice/severance entitlement than what was initially discussed. Though the information presented by ChatGPT is well organized, with citations that, at first, appear legitimate, they are nothing more than AI-created fake cases, with severance entitlements that often do not match the actual relevant decisions/judgments. For more information, click here for an article from Duke University Library on fake ChatGPT citations.

There is no substitute for conducting legal research. Judges across Canada will determine reasonable notice periods based on an analysis of how the Bardal factors apply to each particular case. (Wages earned over the notice period are colloquially referred to as severance. For an introduction to both reasonable notice periods and the Bardal factors, click here.) In conducting legal research, the goal is to find cases with characteristics as similar as possible to the matter at hand. To calculate severance, we look at several such cases and determine a range of possible outcomes in terms of reasonable notice/severance length, and then focus on determining the likeliest outcome within that range based on cases that may have particularly similar factors.

Though lawyers often use paid research tools and products to help them calculate severance more efficiently, all Canadians have access to the fundamental tools they need to conduct their own legal research through CanLII, the Canadian Legal Information Institute (click here to learn more about CanLII). 

The basic research process entails identifying the Bardal factors in the matter at hand, conducting numerous searches for cases with similar characteristics, reviewing the cases found through searches to ensure they are applicable (for example, a case similar to the matter at hand may have an employment agreement with significantly different terms, rendering the case irrelevant), and compiling a list of awarded notice periods (i.e. severance awards).

In addition to being able to find cases with characteristics more closely resembling the matter at hand, conducting legal research has the added benefit of allowing you to review the commentary of Judges, which can help you better understand how the relevant legal principles apply to your specific matter. 

Though we always recommend speaking to an employment lawyer to ensure you have not missed anything critical in your analysis, we recognize, and it is our experience, that many British Columbians with claims for small sums, often stemming from very short employment terms, decide to represent themselves in negotiating with their employers. It is our hope that the information provided here will be of some assistance in helping British Columbians calculate severance and better understand their severance entitlements.