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Abstract

The assessment of wrongful dismissal damages in Canadian law has long been governed by the principles established in Bardal v Globe & Mail Ltd. Although this model of analysis has been met with near universal approval in every decision-making forum in Canada, the principles underlying Bardal warrant further discussion. This work focuses on the contractual core of employment disputes and analyzes the interpretive framework for common law claims for wrongful dismissal. It will show that the traditional law of private remedies has been distorted in the context of wrongful dismissal as a result of the wholesale adoption of the Bardal Factors. The Bardal approach requires courts to depart from traditional doctrines of remedies and contract law and extends beyond the traditional goal of restitutio in integrum to a distributive theory of damages. This ultimately results in outcomes that depart from the original goal of wrongful dismissal remedies: protecting society’s vulnerable workers from unfair employment practices. This paper will suggest that damages from the breach of the employment contract should be objectively assessed from the intention of the parties at the time of contract formation. The courts in Lazarowicz and Bartlam have provided useful guidance with respect to how this method can be successfully applied. Returning to the goal of restitutio in integrum and corrective justice in wrongful dismissal damages would provide needed predictability and stability in employment relationships.


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