Something about near retirement terminations keeps coming up in the work we do. We’ve watched people we respect go through exactly this, and it doesn’t sit cleanly.
Reasonable notice is built on years of service, not the years someone had left to work. It looks back at what a person gave, not forward at what remained. That makes sense on its own terms. But it starts to strain at the end of a career.
For most people, termination pay is a bridge. It covers the stretch while they find comparable work. Now picture someone a year or two from retiring who gets let go. Almost no one is hiring at that stage. So the money isn’t carrying them to another job, because there isn’t going to be another job. It’s carrying them straight into a retirement they didn’t choose and weren’t ready for.
That’s the part worth sitting with. A large award in that situation isn’t really compensating a job search that will never happen. It’s a forced retirement package in everything but name. For some people that’s a soft landing and a windfall. But for someone whose sense of who they are was built around the work, who wanted to decide for themselves when the finish line arrived, no number quite makes that whole. It pays for a working life the person wasn’t finished living.
And this is where Bardal starts to feel like it’s measuring the wrong thing. The framework was built to answer a single question, which is how long it reasonably takes to find comparable work. Age, length of service, the kind of role, the state of the market, each factor is really a proxy for how hard it will be to land somewhere new. That holds right up until there is nowhere new to land. On the eve of retirement it keeps pricing a job search that was never going to happen, and in the process it steps straight past the thing that actually hurts. The injury isn’t the gap before the next job. It’s being told a working life is finished before the person was ready to say so, and having the timing of that taken out of their hands. Bardal can stretch the figure for someone older, but it has no real language for that particular loss.
What’s striking is that Canadian courts have already circled this, using almost the same words. In Dawe v Equitable Life, a senior executive in his early sixties was let go after 37 years, his whole career. The judge who first heard it said he should have been allowed to retire on his own terms, described a termination with no real prospect of new work as the equivalent of a forced retirement, and leaned toward one of the longest notice periods on record. Then the Court of Appeal pulled it back. It held that an employer doesn’t have to factor in when someone planned to retire, and that two years of pay is the ceiling in all but exceptional cases. A few years later, in Currie v Nylene Canada, the same appeal court went the other way. It accepted that a late career termination really was equivalent to a forced retirement, and let the award climb past that usual ceiling.
So the idea we keep circling isn’t ours alone. The courts see it too. What they haven’t done is treat it as its own kind of loss. In each of these cases the forced retirement point matters only because it moves the math, the count of months of pay, and even then it runs into a hard ceiling. The thing that actually stings, being told a working life is over before the person was ready and having the timing taken out of their hands, still has no real place in the calculation. Two courts, the same characterization, opposite results, and neither one names the loss for what it is. That’s why this is still worth asking out loud rather than filing away as settled. If you’ve sat on either side of one of these, or you know a decision that takes the human side of it seriously, we’d like to hear it.