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Ontario Employment Law Guide - 2025

Severance Pay in Ontario
What You Are Actually Owed

Most Ontario employees receive severance offers that fall far below their legal entitlement. This guide explains the two layers of severance - ESA minimums and common law notice - and the difference between them, which can be worth tens of thousands of dollars.

Updated 2025ESA vs Common LawSeverance NegotiationLexaltico LLP
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1. The Two Layers of Severance Pay

Ontario employees have TWO layers of severance entitlement. The ESA sets statutory minimums. Common law notice - determined by courts based on your specific circumstances - is almost always significantly higher. Most employers offer only the ESA minimum. Most employees accept without knowing they are owed far more.
ESA Minimums
The Floor - Not the Ceiling
  • 1 week/year of service
  • Maximum 8 weeks termination pay
  • ESA severance: 1 wk/yr if 5+ yrs AND payroll over $2.5M (max 26 wks)
  • Absolute minimums - cannot be waived
Common Law Notice
The True Entitlement
  • Based on age, service, position, market
  • Approximately 1 month per year of service as a starting point
  • Maximum approximately 24 months
  • Almost always higher than ESA minimums

2. ESA Termination Pay and Severance Pay

EntitlementCalculationMaximumWhen It Applies
Termination pay (s.57)1 week per year of service8 weeksAll employees with 3+ months of service
Severance pay (s.64)1 week per year of service26 weeksOnly if: 5+ years service AND employer payroll over $2.5M, OR mass layoff
ESA severance and termination pay can be combined. An employee with 10 years at a large employer can receive up to 8 weeks termination pay + 10 weeks severance pay = 18 weeks total under ESA. But common law notice for the same employee could be 12-18 months.

3. Common Law Notice - How It Is Calculated

Common law notice is determined by courts using the Bardal factors:

FactorImpact on Notice
Length of serviceThe most important factor. Courts often start at 1 month per year of service.
AgeOlder employees receive more notice - harder to find comparable work. Employees in their 50s-60s with long service may approach the 24-month cap.
Position and senioritySenior, specialized, or managerial roles receive more notice than entry-level positions.
Availability of similar workIf comparable jobs are scarce in your field, notice increases.
Special inducementIf you left secure employment to take this job, courts may award additional notice.
24 mo
Approximate maximum common law notice for most Ontario employees
8 wks
Maximum ESA termination pay - the floor employers start at
$200K+
Potential gap for a senior employee earning $150K - the difference between ESA and common law

4. What to Do With Your Severance Offer

1
Do not sign immediately

You are almost never required to sign right away. Take the offer home. There is no legal obligation to decide on the spot.

2
Get the offer in writing

If you received a verbal offer, ask for the full terms in writing before responding or consulting anyone.

3
Have a lawyer review it - free at Lexaltico

A 30-minute free consultation often reveals that what was offered is a fraction of the legal entitlement. The additional amount secured almost always far exceeds any legal fees.

4
Review your employment contract

Your contract may contain a termination clause limiting you to ESA minimums. Many such clauses are legally unenforceable - a lawyer can assess yours.

5
Apply for Employment Insurance

Apply immediately after termination. Delays cost you weeks of benefits.

5. Negotiating Your Severance Package

ComponentWhat to Check
Notice/pay in lieuIs it only ESA minimums? Common law notice is typically much higher and almost always worth negotiating.
Benefits continuationDo health, dental, and life insurance continue through the notice period? Required under ESA.
Bonus and commissionsAre unpaid bonuses or commissions for the notice period included? Frequently omitted.
Stock options and equityWhat happens to unvested options? Can represent significant value.
Reference letterHas a positive reference been offered? This has real economic value and can be negotiated.
Most severance offers are negotiable. The initial offer is almost always a floor. Employers expect negotiation. Having a lawyer send a demand letter typically results in a substantially improved offer without litigation.

If your employer offered inadequate severance (less than your common law notice entitlement), you have been wrongfully dismissed - even if the termination itself was lawful. The remedy is the common law notice amount you should have received.

You have two years from the date of termination to make a wrongful dismissal claim in Ontario court. Do not wait - limitation periods run from the date you were terminated, not the date you signed (or did not sign) a release.

Do not sign the release. Signing a release is the final, irrevocable act. Once signed, you give up all claims. This is why reviewing the offer before signing - not after - is so critical.

7. Frequently Asked Questions

What is the difference between termination pay and severance pay in Ontario?
Termination pay (1 week/year, max 8 weeks) applies to all employees. ESA severance pay (additional 1 week/year, max 26 weeks) applies only if you have 5+ years of service AND your employer's payroll is over $2.5M. Both are ESA minimums and separate from common law notice.
How much severance am I entitled to in Ontario?
It depends on your length of service, age, position, and the availability of comparable work. Under ESA minimums: 1-8 weeks plus potentially 1-26 weeks severance. Under common law: potentially months to years. A lawyer can give you a precise range for your situation in a free consultation.
Can I negotiate my severance package?
Almost always yes. Most employers expect negotiation and their initial offer is a floor. A well-drafted demand letter from an employment lawyer typically achieves a significantly better result than the employee would get alone, often without any litigation.
How long do I have to accept a severance offer?
There is no strict legal deadline to accept a severance offer. However, your legal limitation period to make a court claim is two years from termination. Do not delay consulting a lawyer - but you typically have at least a few weeks to review before responding.
Does severance pay affect Employment Insurance?
Yes. If you receive a lump sum severance or pay in lieu, Service Canada may treat this as covering a certain number of weeks and delay when your EI begins. Apply for EI immediately regardless - delays only hurt you.

Just Received a Severance Offer?

Do not sign before speaking with us. Our Toronto employment lawyers review severance offers in a free consultation. The additional amount we typically secure far exceeds our legal fees.

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