Somewhere in your organization right now, there is a termination clause in an employment contract that was drafted in 2018 or 2019, applied to an employee who went fully remote in 2020, and has not been reviewed since. That contract is the reason you are reading this.

The BC Court of Appeal has introduced a consideration into Canadian wrongful dismissal law that disrupts the severance calculation for a significant portion of the workforce. The ruling is appellate-level, which means it carries real weight. It is specific to British Columbia today. It will not stay that way.

Ontario courts regularly look to appellate decisions from other Canadian provinces when they are developing their own reasonable notice jurisprudence. The reasoning in this ruling is not provincial. It is grounded in the Bardal factors that every Canadian court uses, applied to a factual reality that exists across the country. Any HR team managing remote employees anywhere in Canada should be treating this decision as directly relevant to their current severance exposure.

What the ruling actually established

Canadian courts have used the Bardal factors since 1960 to determine what constitutes reasonable notice at common law. Age. Length of service. Character of employment. Availability of similar employment. These factors sit above the ESA statutory floor and determine the real number, the one that matters when there is no enforceable termination clause or when the existing clause gets challenged.

The Court found that geographic mobility is a legitimate consideration in the reasonable notice analysis for remote employees. A fully remote worker in a mid-sized city does not have the same re-employment market as an office employee in downtown Toronto. Their job search is not constrained by commuting distance, but it is constrained by the limited number of employers in their region offering comparable remote roles in their specific field.

Remote work has expanded access to opportunities in some ways and compressed it in others. An employee hired specifically for a remote role, working for a single employer over several years, living outside a major metropolitan labour market, and operating in a specialized function has a meaningfully different re-employment profile than the Bardal analysis was designed around.

The Court's position is that this profile can justify a longer reasonable notice period. Not automatically, not formulaically, but as a factor that adjusts the calculation upward when the facts support it.

What this does not change

The ESA minimums are statutory and fixed. In Ontario, one week per year of service up to a maximum of eight weeks, plus severance pay for employees with five or more years of service at organizations with a payroll over $2.5 million. This ruling does not touch those numbers.

What it changes is the common law reasonable notice calculation that applies when you do not have an enforceable termination clause capping your exposure, or when your clause is challenged in court and does not hold. That is where the gap between what you budgeted for a termination and what a court awards actually comes from.

For organizations with well-drafted, properly executed termination clauses, this ruling may not change much. For organizations with template clauses that have not been reviewed since 2019, or with clauses that were not updated when employees transitioned to permanent remote work, the exposure picture has changed.

The pre-2020 contract problem

This is where the practical risk concentrates.

Employment contracts are written to reflect the circumstances of employment at the time they are signed. Termination clauses in contracts drafted before 2020 were written with a specific employee profile in mind: someone commuting to an office in a city with an active labour market, working alongside colleagues, visible to local competitors, and broadly accessible to the same pool of opportunities as their employer's other employees.

That profile shaped the risk the clause was designed to manage. The reasonable notice calculation that clause was capping assumed a certain re-employment timeline. A downtown Toronto employee with adjacent opportunities in a dense labour market was expected to find comparable work faster than someone isolated in a smaller market. The clause was calibrated accordingly.

When that employee became permanently remote in 2020 and the employer documented that remote work was now the permanent arrangement, the underlying factual assumptions of the contract changed. The clause did not update itself. Courts interpret reasonable notice based on the circumstances at the time of termination, not the circumstances at the time the contract was signed. An employee who has been fully remote for five years is not the same legal profile as the office-based employee the contract was drafted for. The clause that worked then may not cap what you think it caps now.

This is not hypothetical. Employment counsel across Canada are already seeing this argument made in wrongful dismissal claims. The BC appellate ruling gives it significantly more traction.

Who carries the most risk

Not every remote employee represents elevated notice exposure. The ruling's logic applies most directly to a specific profile: employees who are fully or primarily remote, working in regions outside major metropolitan centres, in specialized or senior roles where the labour market is thin, who have accumulated meaningful tenure with a single employer.

A senior HRBP who has been fully remote for four years, living in a mid-sized Ontario city, supporting a niche industry, is a very different notice calculation than a remote customer success representative in Toronto with three years of tenure. The Bardal factors have always been individual. This ruling adds a factor that makes the individual analysis more important, not less.

The terminations that carry the most exposure are senior employees, long-tenured employees, specialists, and anyone working remotely in a market where comparable roles are genuinely scarce. These are also, in many cases, the most expensive terminations. The combination of elevated notice at common law and a clause that may not hold is a meaningful financial risk.

What to do now

The practical response has three steps.

Start by identifying which employees in your organization are fully or primarily remote and have been for more than a year. Layer in tenure: anyone with five or more years of service in a remote arrangement deserves specific attention. These are the terminations where your reasonable notice exposure has increased since you last assessed it.

Then pull the termination clauses for those employees. Not your standard template. The actual executed agreements. Read the clause and ask whether it was reviewed after the employee transitioned to permanent remote status. If the answer is no, treat it as unreviewed for this purpose. Have employment counsel assess whether the clause remains enforceable under current case law and whether the notice period it purports to cap reflects the actual risk profile of the employee.

For new hires joining remotely, ensure the termination clause is drafted with that context explicitly in mind. A clause written for an office-based employee and applied without modification to a remote hire is a clause that a good plaintiff's employment lawyer will challenge. The drafting should reflect the actual employment arrangement, including the remote nature of the role, the employee's location, and the anticipated labour market for their function.

The cost of a legal review of your termination clause inventory is fixed and predictable. The cost of a wrongful dismissal claim from an employee whose notice period was miscalculated is neither.

The Ontario question

This ruling came from BC. The question HR teams in Ontario are asking is how quickly and directly it applies to them.

Ontario courts have historically been willing to adopt reasoning from other Canadian appellate courts when it is persuasive and the facts align. The geographic mobility argument is not a BC-specific concept. It is an application of the availability of similar employment factor that Ontario courts already use. A plaintiff's lawyer arguing this point before an Ontario court now has appellate authority from another Canadian jurisdiction supporting the position. That is a meaningful development.

The honest answer is that Ontario courts have not yet adopted this specific reasoning in a published decision. The honest follow-up is that this does not mean they will not, and that waiting for an Ontario appellate ruling before reviewing your remote employee termination clauses is not a risk management strategy.

If you have remote employees in Ontario and your termination clauses have not been updated since 2020, that is the action item. The BC ruling is the reason to do it now rather than later.

This post reflects general practitioner experience and should not be relied upon as legal advice. Specific termination situations require review by qualified employment counsel in the relevant jurisdiction.