In New Brunswick, statutory notice is the absolute minimum payout required by the Employment Standards Act, which caps at just 4 weeks of pay. Common law reasonable notice is a much larger severance package calculated by judges, which can provide up to 24 months of pay depending on your age, role, and years of service.
Losing your job is one of the most stressful experiences a person can face. 💔 When an employer hands you a termination letter in New Brunswick, they will often offer you a small amount of money and pressure you to sign quickly. Many people do not realize that what the government lists as the “minimum” is rarely what you are actually legally entitled to receive under the full scope of Canadian law.
Whether you work in a corporate office in Moncton, a manufacturing plant in Saint John, or a retail store in Fredericton, understanding the difference between your statutory rights and your common law rights is critical. This guide will explain how these two systems work together and how to ensure you do not walk away leaving tens of thousands of dollars on the table.
Step-by-Step Process in New Brunswick
Figuring out exactly how much severance you are owed involves looking at both provincial legislation and historical court decisions. 📋 Here is how employment lawyers evaluate your case.
Step 1: Calculate Your Statutory Minimums
First, you look at the New Brunswick Employment Standards Act. This law sets the bare minimum your employer must give you if they fire you without cause. If you have worked there for less than 6 months, you get zero notice. From 6 months to 5 years, you get 2 weeks of notice. If you have been there for more than 5 years, the maximum is only 4 weeks. This is your statutory notice, and your employer must pay it without asking for anything in return.
Step 2: Review Your Employment Contract
Next, you must check the contract you signed when you were hired. 🖊 Many employers in New Brunswick include a “termination clause” designed to limit your severance to only the statutory minimums mentioned above. However, if this clause is written poorly or violates any part of the law, a judge at the Court of King’s Bench may throw it out entirely.
Step 3: Determine Common Law Reasonable Notice
If you do not have a valid termination clause restricting you, you are entitled to common law reasonable notice. Under the common law, judges look at four main factors (often called the Bardal factors): your age, your length of service, the character of your employment (e.g., senior management vs entry-level), and the availability of similar jobs in the local economy. Based on these factors, you could be owed roughly one month of pay per year of service, up to a maximum of 24 months.
Step 4: Negotiate a Fair Severance Package
Armed with this information, you or your employment lawyer will send a demand letter to your former employer. 💰 Instead of accepting the tiny 4-week statutory minimum, you negotiate for a package that reflects your true common law entitlements. If the employer refuses to be fair, you have the option to file a wrongful dismissal lawsuit.
How Much Does it Cost in New Brunswick?
Fighting for your common law severance does not have to drain your savings. Most employment law firms offer structures to help individuals who have just lost their income. 💵
- Contract Review: Hiring a lawyer in Fredericton or Moncton to simply review your termination offer and tell you what you are actually owed usually costs between $300 and $600 CAD.
- Contingency Fees: Many lawyers will negotiate your severance on a contingency basis. This means you pay nothing upfront, and the law firm takes a percentage (typically 25% to 33%) of the extra money they win for you.
- Court Filing Fees: If you must file a formal lawsuit at the Court of King’s Bench, the initial filing fees are approximately $100 to $200 CAD.
| Statutory Notice (ESA) | 4 Weeks | Employment Standards Branch (Free) |
| Common Law Notice | Up to 24 Months | Court of King’s Bench (Lawyer required) |
How Long Does the Process Take?
If you only want your statutory minimums, the process is very fast. ⌛ Your employer is legally required to pay these minimums by your next regular payday or within a few days of your termination.
If you are pursuing common law reasonable notice, it takes longer. A negotiated settlement through lawyers usually takes 4 to 8 weeks. However, if the employer is stubborn and you have to take the case all the way to a trial at the Court of King’s Bench, it can take 12 to 24 months to resolve.
Frequently Asked Questions (FAQ)
Does my severance include my bonus and benefits?
Yes. Common law reasonable notice requires your employer to keep you completely whole during the notice period. This includes your base salary, expected bonuses, car allowances, and health benefits.
Can I claim common law severance if I was fired for cause?
Generally, no. If you are legitimately fired for just cause (like theft or severe misconduct), you are not entitled to statutory notice or common law severance. However, employers often claim cause when they shouldn’t, which you can fight in court.
What happens if I find a new job right away?
Under the common law, you have a duty to mitigate your damages. If you find a new job that pays the same or more during your notice period, your former employer’s obligation to keep paying you severance generally stops.
Do I have to pay taxes on my severance?
Yes, severance pay is considered a retiring allowance by the Canada Revenue Agency (CRA) and is subject to income tax. Your employer will deduct taxes before giving you the lump sum.
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